Delhi District Court
State vs Satish on 28 September, 2020
State v. Satish
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (NORTH) 05,
ROHINI COURTS, NEW DELHI
State versus Satish
FIR No. 1477/15
PS SB Dairy
U/s 33 of Delhi Excise
Act.
JUDGMENT
1 Serial No. of the case : 5295008/2016
2 Date of commission : 29.12.2015 3 Date of institution of the case : 12.05.2016 4 Name of complainant : Ct. Ashwani 5 Name of accused : Satish S/o Sh. Kapiya Ram. 6 Offence complained of : U/s 33 of Delhi Excise Act 7 Plea of accused : Pleaded not guilty 8 Arguments heard on : 28.09.2020 9 Final order : Acquitted 10 Date of judgment : 28.09.2020 BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of prosecution are that on 29.12.2015 at about 07.30 pm, infront of A1270, Phase II, Metro Vihar, Holambi Kalan, Delhi, accused was carrying one white FIR No. 1477/15 PS SB Dairy 1 of 8 State v. Satish plastic katta containing 96 quarter bottles of Asli Santra Masaledar Desi Sharab of illicit liquor as per seizure memo X without having any permit or valid license. Accordingly the FIR u/s 33 of Delhi Excise Act was registered against the accused.
CHARGE
2. Prima facie case of commission of offences under Section 33 of Delhi Excise Act was made out against accused and charge was framed against accused on 27.09.2016 wherein he pleaded not guilty and claimed trial.
ADMISSION U/S 294 Cr.PC
3. During the course of evidence, statement of accused was recorded under section 294 Cr.PC wherein he did not dispute the identity of certain documents and admitted the same in terms of section 294 Cr.P.C. Accused had admitted the following document:
(i) DD No. 25PP Ex. PA;
(ii) FIR as Ex. PB;
(iii) Endorsement of DO over original rukka as Ex. PC;
(iv) Certificate u/s 65 B Indian Evidence Act as Ex.
FIR No. 1477/15 PS SB Dairy 2 of 8
State v. Satish
PD;
(v) Result of analysis by Excise Control Laboratory as Ex. PE;
(vi) Cop of road certificate no. 7/21/16 as Ex. PF;
(vii) Statement of Ct. Devanand and Ct. Pradeep as Ex.
PG and PH.
EVIDENCE LED BY THE PROSECUTION
4. The prosecution has examined 02 witness.
PROSECUTION WITNESS
PW1 HC Ashwani Assisted the IO
PW2 HC Neeraj IO of the case
5. Prosecution has relied upon the following documents: Exhibited Contents Exhibits by PW1 Statement PW1/A Seizure memo PW1/B Arrest memo and personal search PW1/C to PW1/E memo and disclosure statement memo PW2 Form M29 and Rukka PW2/A and PW2/B Site plan PW2/C FIR No. 1477/15 PS SB Dairy 3 of 8 State v. Satish
6. PW1 HC Ashwani deposed that on 29.12.2015 he alongwith Ct. Jagdeep were on patrolling duty and at about 07.15 pm, they reached infront of Govt. CoEducation School, CBlock, Metro Vihar Phase II, Delhi and met one secret informer who gave information that one person was having illicit liquor after which he requested the public persons to join the raiding party, but none of them agreed and left the spot without disclosing their names and addresses and thereafter, they went to spot and apprehended the accused alongwith the illicit liquor. PW1 further stated that thereafter information regarding arrest of the accused and recovery of illicit liquor was sent to police post after which IO/HC Neeraj came there and joined the investigation and thereafter, IO recorded his statement as Ex. PW1/A. PW1 further stated that IO checked the katta and found it containing 96 quarter bottles of 180 ML each of Asli Santra Masaledar Desi Sharab and one quarter bottle was taken out as sample and both sample and katta were sealed with the seal of NJ. PW1 further deposed that IO also filled Form M 29 and seized the abovesaid case property vide memo Ex. PW1/B and thereafter he prepared tehrir/ rukka and after registration of FIR, he returned to the spot after which IO arrested the accused and carried out personal search of accused vide memos Ex. PW1/C and PW1/D respectively and also recorded disclosure statement of accused vide memo Ex. PW1/E. FIR No. 1477/15 PS SB Dairy 4 of 8 State v. Satish
7. PW2 IO/ HC Neeraj deposed on the same line as PW1 and further proved Form M29 as Ex. PW2/A, rukka as Ex. PW2/B and site plan as Ex. PW2/C. PW2 also proved the photographs and samples of case property Ex. P4 and P5 respectively and further stated that the case property were already destroyed vide order no. F.CONF./2015/3616 dated 13.05.2016 as Ex. P1 to P3.
8. Thereafter, PE was closed vide order dt. 21.09.2020. Upon closure of the PE, the statement of accused U/s 313 Cr.P.C was dispensed with as nothing incriminating has come on record against the accused
9. In the instant case, the sole issue to be adjudicated is whether the accused was in possession of illicit liquor without any valid license or not.
10. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and 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 FIR No. 1477/15 PS SB Dairy 5 of 8 State v. Satish by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution and in absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
11. In the case in hand, the seizure memo of the illicit liquor was prepared before registration of FIR. However, admittedly the seizure memo Ex. PW1/B contains the FIR number on the same but there is no explanation furnished by prosecution, as to how and under what circumstances, the same has appeared. The same causes reasonable doubt in the prosecution story as held in the judgment of Giri Raj Vs. State 83 (200) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as :
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This give rise to two inferences that either the FIR (Ex.PW2/a) 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 situation, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in FIR No. 1477/15 PS SB Dairy 6 of 8 State v. Satish the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant". The same view was adopted in the case of Mohd. Hashim. Appellant Vs. State 2000 CRI.L.J. 15010 Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 200 CRI.L.J.114.
12. In the present case, as per PW1, public persons were requested by the IO to join the investigation, but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore, it is clear that sincere efforts were not made to join the independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
13. In his cross examination, IO has admitted that he has not mentioned the duration of the patrolling duty of Ct. Ashwani and Ct. Jagdeep in the statement Ex. PW1/A and also admitted that he has not taken any photographs of the case property at the spot and he did not note down the name and address of the public persons FIR No. 1477/15 PS SB Dairy 7 of 8 State v. Satish whom he had asked to join the investigation.
14. Therefore in view of aforesaid discussion, I am of the considered view that the story of prosecution that the accused was in possession of illicit liquor has come under cloud and accused deserves benefit of doubt. Accordingly, accused stands acquitted for section 33 of Delhi Excise Act.
15. For the reasons mentioned above, this court acquits the accused for offence u/s 33 Delhi Excise Act. Accused Satish is directed to furnish bail bond and surety bond under Section 437A Digitally signed Cr.PC. by VAIBHAV VAIBHAV MEHTA MEHTA Date:
2020.10.05 14:50:19 +0530 Announced in the open (VAIBHAV MEHTA) court on 28.09.2020 MM5 (North), Rohini Courts New Delhi FIR No. 1477/15 PS SB Dairy 8 of 8