Delhi District Court
State vs . Rajesh Arora on 31 March, 2023
IN THE COURT OF SH. AVIRAL SHUKLA,
METROPOLITAN MAGISTRATE-05, SOUTH DISTRICT,
SAKET COURTS COMPLEX, NEW DELHI
CNR No. DLST02-005576-2019
IN THE MATTER OF:
State Vs. Rajesh Arora
FIR No. 1809/2015
PS Mehrauli
U/s 33 of the Delhi Excise Act, 2009.
JUDGMENT
A) Sl. No. of the case : CR No. 1076/2019
B) The date of commission : 02.07.2015
of offence
C) The name of the : HC Ashok Kumar, Belt No.
complainant 558/SD, PIS No. 28981821,
PS Mehrauli
D) The name and address of : Rajesh Arora, S/o Sh. Atma
accused Ram, R/o H.No. 781/6, Ward
No. 6, Doodh Wali Gali,
Mehrauli, New Delhi.
E) Offence complained of : 33 of the Delhi Excise Act,
2009.
F) The plea of accused : Not Guilty
G) Final Order : Acquittal.
H) The date of such Order : 31.03.2023
DATE OF INSTITUTION : 15.02.2019
DATE OF FINAL ARGUMENTS : 29.03.2023
DATE OF JUDGMENT : 31.03.2023
FIR No. 1809/2015 PS Mehrauli Page No. 1 of 11
JUDGMENT
1. The present case has originated from the charge-sheet filed by the State under Section 33 of the Delhi Excise Act, 2009, against accused Rajesh Arora s/o Sh. Atma Ram. As per charge- sheet, on 02.07.2015, at about 09:00 PM, at Doodhwali Gali, Mehrauli, New Delhi, accused was found in possession of 40 quarter bottles of 'Macdowells No.1 Superior Whiskey' that was meant for sale in Haryana only, each of which were measuring 180 ml. The accused was stated to be in possession of the aforesaid bottles without any license or permit, and is thereby sought to be prosecuted for the offence punishable under Section 33 of the Delhi Excise Act, 2009.
2. An application for condonation of delay (in filing of the chargesheet) was adjudicated upon by the Court and the delay was condoned. Ld. counsel for the accused thereafter conceded to the charge. The Court framed charge against the accused for the offence punishable under Section 33 of Delhi Excise Act. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial.
3. The accused admitted the FIR no. 1809/2015 as Ex. A1, the Certificate under Section 65B as Ex. A2, the DD No. 95A as Ex. A3, and the Excise Laboratory Report as Ex. A4. In view of the aforesaid admissions, the evidence of prosecution witnesses listed at Sr. No. 6 and 7 of the chargesheet was dispensed with.
FIR No. 1809/2015 PS Mehrauli Page No. 2 of 114. In order to prove its case, prosecution has examined four witnesses.
5. PW1 ASI Ashok Kumar deposed that on 02.07.2015, he was posted as Head Constable at PS Mehrauli. On that day, he was on patrolling duty. During patrolling, he reached at Doodhwali Gali, Shiv Mandir, Mehrauli, New Delhi. PW1 had seen one person who was standing in the street in suspicious condition and he was having one white katta in his hand. It is stated by PW1 that after looking at PW1, the said person started moving fast and tried to enter one house. PW1 immediately approached him and apprehended him. When PW1 opened the katta and checked it, he found illicit liquor i.e. 40 quarter bottles of branch 'Mc Dowell's No.1 Superior Whiskey' measuring 180 ml each. PW1 took out one quarter bottle as sample and sealed it with the seal of 'AK' and kept the remaining 39 quarter bottles in the same katta, tied the mouth of the katta with a white cloth and sealed it with the seal of 'AK'. After the use of the seal, it was handed over to Ct. Rajesh. It is stated that during the interrogation, the accused stated his name as Rajesh Arora. It is deposed that PW1 had also filled the Form M29 at the spot which is Ex. PW1/B. Thereafter, he had seized the illicit liquor through seizure memo Ex.PW1/A.
6. It is further deposed by PW1 that he had prepared the rukka which is Ex. PW1/C and handed over the same to Ct. Rajesh and sent him to PS for registration of FIR. After FIR No. 1809/2015 PS Mehrauli Page No. 3 of 11 registration of FIR, Ct. Rajesh came back at the place of incident and handed over copy of FIR and original rukka to PW1 as further investigation was marked to him. During investigation, PW1 had filled the details of FIR on the documents which were prepared before the registration of FIR. PW1 had prepared the site plan which is Ex. PW1/D. After interrogation, PW1 had arrested the accused and conducted his personal search vide memos Ex.PW1/E and Ex.PW1/F respectively. It is stated that they came back to PS and deposited the case property in the malkhana. During the examination, the witness had correctly identified the accused and case property. Witness was cross- examined by Ld. Defence counsel.
7. PW2 was HC Mahender Singh who stated that on 04.01.2019, he was posted as Head Constable in PS Mehrauli. On that day, the investigation of the present case was marked to him. He had received the file from MHC(R) and studied it. The investigation was already complete. He had prepared the chargesheet and filed before this Court. PW2 was cross examined by Ld. counsel for accused.
8. PW3 ASI Sanjay Kumar deposed that in 2017, he was posted as Head Constable at PS Mehrauli. During that time, as per the direction of the concerned SHO, he had perused the case file and collected the Excise Laboratory result and placed the same on record. Thereafter, during investigation, he had met with an accident and the case was handed over to MHC(R). Witness FIR No. 1809/2015 PS Mehrauli Page No. 4 of 11 was cross-examined by Ld. Defence counsel.
9. PW4 was HC Rajesh who deposed that on 02.07.2015, he was posted as Constable at PS Mehrauli. On that day, he was on patrolling duty with HC Ashok. PW4 has deposed on the same lines as PW1 ASI Ashok. The witness was cross-examined by Ld. Defence counsel.
10. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 and 294 Cr.P.C. was recorded in which all incriminating material was put to him. Accused pleaded innocence and claimed to have been falsely implicated. Despite opportunity, accused chose not to lead any evidence in his defence.
11. Thereafter, final arguments were heard. Ld. Additional Public Prosecutor for the State relied upon the testimonies of the prosecution witnesses along with exhibited documents and prayed for conviction of the accused. On the contrary, Ld. counsel for defence stressed on the fact that no independent / public witness has been examined by the prosecution and the same raises doubts on the veracity of the case of the State. Ld. counsel accordingly prayed for acquittal of the accused.
12. At the outset, it is pertinent to note that Section 33 Delhi Excise Act reads as follows:
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. FIR No. 1809/2015 PS Mehrauli Page No. 5 of 11 (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any license, permit or pass, granted under this Act-- •
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for 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 toddy or tari;
(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 lath rupees.
13. It is the case of the prosecution that on 02.07.2015, at about 09:00 PM, at Doodhwali Gali, Mehrauli, New Delhi, accused was found in possession of 40 quarter bottles of 'Mc Dowell's No.1 Superior Whiskey' that was meant for sale in the State of Haryana only. The said bottles measured 180 ml each. It has been stressed that the accused was without any license and permit to possess the said bottles and thereby he committed the offence punishable under Section 33 of the Delhi Excise Act. Per contra, it is the defence of accused that he has been falsely implicated in the present case.
14. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of the accused. For the purpose of proving the recovery, testimonies of two witnesses is relevant- PW1 FIR No. 1809/2015 PS Mehrauli Page No. 6 of 11 Ashok Kumar and PW4 HC Rajesh, as the aforesaid police personnel constituted the patrolling team and were present at the spot when the alleged recovery was effected. PW1 has clearly stated that the accused was seen by him standing in a suspicious condition. He has stated that once the Katta was opened, illicit liquor was found in it. It has been stated by PW1 that he took out one quarter bottle as sample and handed over the katta to Ct. Rajesh.
15. Both PW1 and PW4 were cross examined by Ld. Counsel for the accused on the aspect of absence of independent / public witnesses in the present case. PW1 has stated that he had asked certain public persons to join the investigation of the case but nobody joined the investigation. He has stated that ' I asked public persons to join the investigation but nobody joined the same. I do not know the name of shopkeeper to whom I asked to be a witness. I do not know the name of the shop also' . PW4 was also cross examined on the question of endeavours made by the IO in joining public persons. PW4 has stated: 'The IO attempted to join certain public persons for the purpose of recording their statement. However, no statement of any public persons could be recorded. The IO requested the shopkeepers to join the investigation but none of them joined citing their personal difficulties.'.
However, in the entire testimonies, there is no sufficient reason provided by either of the witnesses which may have compelled PW1 or PW4 to forego the proper mode of investigation that should have been undertaken in the said circumstances.
FIR No. 1809/2015 PS Mehrauli Page No. 7 of 1116. At this stage, it is to be noted that in order to prove the recovery of illicit liquor, it is mandatory to comply with the provision of section 100 (4) of the Cr.PC. Accused is stated to be arrested at a place where houses and shops were present, but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory.
17. In the aforesaid circumstances, it is pertinent to place reliance on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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".
18. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
FIR No. 1809/2015 PS Mehrauli Page No. 8 of 11"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
19. In the present case, it appears that no sincere effort was made by PW1 or PW4 to join respectable witnesses from the same locality. Rather, it has merely been stated that the shopkeepers declined to become witnesses. As has been noted above, there is no sufficient explanation available in the testimonies led by the prosecution, which may render sufficient justification for absence of even a single public / independent FIR No. 1809/2015 PS Mehrauli Page No. 9 of 11 witness in the matter. Prosecution has thus failed to prove the due recovery of illicit liquor from the accused due to the absence of adequate witnesses in the present case.
20. Further, as per the prosecution, PW1 and PW4 were on a patrolling duty when the accused was spotted by them. The relevant DD entry has not been placed on record by the prosecution. When PW1 and PW4 were cross examined on this aspect, they were unable to tell the relevant DD No. pursuant to which they were on patrolling duty. It is also noted that the complainant of the present case is HC Ashok Kumar (since promoted to the post of ASI) and he is also the 1 st Investigating Officer of the case. Hon'ble Supreme Court of India has expressly held in various cases that in order to ensure a fair trial, the informant and the investigator must not be the same person as any possibility of bias or predetermined conclusion has to be excluded (reference may be made to the judgment in Mohan Lal v. State of Punjab, Cr. Appeal No. 1880/2011 ). The aforesaid lapses cast a doubt on the version of the prosecution, as presented in the chargesheet.
21. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution.
FIR No. 1809/2015 PS Mehrauli Page No. 10 of 11(Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal) 662).
22. In view of the above discussion, this Court is of the considered view that the prosecution has failed to prove the guilt of accused beyond reasonable doubt, the benefit of which accrues in his favour. Accused Rajesh Arora s/o Sh. Atma Ram is accordingly acquitted for the offence under Section 33, Delhi Excise Act.
23. Let bail bonds / surety bonds be furnished by the accused under Section 437A, CrPC.
24. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
25. File be consigned to Record Room, after due compliances.
Announced in Open Court (AVIRAL SHUKLA) on 31.03.2023 MM-05,South District/31.03.2023
Certified that this judgment contains 11 pages and bears my signatures at each page.
(AVIRAL SHUKLA) MM-05,South District/31.03.2023 FIR No. 1809/2015 PS Mehrauli Page No. 11 of 11