Delhi District Court
State vs Anand on 12 February, 2025
IN THE COURT OF Dr. NUPUR GUPTA
CHIEF JUDICIAL MAGISTRATE:
SOUTH EAST DISTRICT, SAKET COURT,
NEW DELHI
Cr CASES 1743/2022
STATE Vs. ANAND & ORS.
FIR NO. 199/2021
PS (CRIME BRANCH-S/E)
JUDGMENT
CIS No. : 1743/2022
CNR NO. : DLSE02-003665-2022
Date of institution of the case : 22.02.2022.
Date of commission of offence : 06.10.2021.
Name of the complainant : ASI Satish Kumar.
Name of accused persons :
(1) Anand S/o Sh. Anna Malai, R/o
Jhuggi NO. 545, Madrasi Camp,
Jangpura -B, Nizamuddin, Delhi. Aged
about 47 years.
(2) Murgan S/o Sh. Mutulingam, R/o
Jhuggi No. T-176, Madrasi Camp,
Jangpura-B, Nizamuddin, Delhi. Aged
about 44 years.
(3) Renu @ Remi Ansari W/o Abdul
Farukh, R/o E-299, Near Badkhal, SGM
Nagar, Sector - 22, Faridabad, Haryana.
Aged about 37 years.
Offence complained of : U/s 33 of Delhi Excise Act
FIR No. 199/2021, PS Crime Branch / SE
State Vs. Anand @ Ors. Page No. 1 of 15
Digitally
signed by
NUPUR
NUPUR GUPTA
GUPTA Date:
2025.02.12
16:48:03
+0530
Plea of the accused persons : Pleaded not guilty.
Final order : All 03 accused persons are acquitted.
Date on which judgment reserved : 27.01.2025.
Date of judgment : 12.02.2025.
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The brief facts of the case of the prosecution are that on 06.10.2021, at about 05:50 PM, at Jhuggi No. 545, Madrasi Camp, Jangpura, Nizamuddin, Delhi, Delhi, accused Renu @ Remi Ansari, Anand and Murgan were found in possession of 17 cartons of illicit liquor i.e. 04 cartons of Race 7 "For Sale in Haryana Only", each carton containing 48 quarter bottles and 12 cartons of Charlie Santra "For Sale in Haryana Only", each carton containing 50 quarter bottles without any license or permit.
2. IO conducted the investigation. After completion of the investigation, charge-sheet was filed against accused persons namely Anand, Murgan and Renu @ Remi Ansari u/s 33 of Delhi Excise Act. Cognizance of offence was taken and accused persons were summoned to face trial on 07.03.2022. The copy of chargesheet were supplied under Section 207 Cr.P.C. on 29.04.2022.
3. After giving opportunity to State as well as accused for making submissions on charge, a formal charge for offence u/s 33 of Delhi Excise Act read with Section 34 IPC was framed against all accused persons to which they pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined five witnesses.
5. PW-1 SI Surender Rana has deposed before the Court that on 06.10.2021, he was posted as Sub-Inspector at Crime Branch, Chanakya Puri and on that day, the investigation of the present case was assigned to him and, Constable Sandeep came to his office at Chanakya Puri and handed over the FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 2 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:48:13 +0530 copy of FIR and original rukka to him. Thereafter, he along with Constable Sandeep went to the spot i.e. Jhuggi No. 545, Madrasi Camp, Nizamuddin where ASI Satish, SI Sanjeev, SI Amit, ASI Sukender, HC Dinesh and HC Naveen were already present along with case property in a sealed condition. Thereafter, ASI Satish handed over the documents of the present case, which were prepared by him prior to his arrival at the spot and handed over the case property to him. He then perused the documents and mentioned the FIR number on the said documents. He then prepared the site plan Ex.PW1/A at the instance of ASI Satish at the spot. He then recorded statements of witnesses / members of the raiding party at the spot and, thereafter, took the case property to the office of Crime Branch / Pushp Vihar and deposited the same in the Malkhana. ASI Satish then disclosed the fact that accused had fled away from the spot after seeing the police officials. He further deposed that during further course of investigation, as per the secret information, he apprehended accused Anand near Jhuggi, Madrasi Camp. He was then interrogated and he admitted the fact of selling illicit liquor along with Murgan in his Jhuggi without having any license. He then took the accused Anand to the office of Crime Branch where he arrested him and conducted his personal search vide Ex.PW1/B and Ex.PW1/C respectively. He then recorded disclosure statement of accused Anand at the office of Crime Branch vide Ex.PW1/D. He further deposed that during further course of investigation, co-accused Murgan was also arrested by another IO of PS Crime Branch in case FIR No. 198/2021 in which accused Murgan admitted that he used to sell illicit liquor along with accused Anand at Jhuggi Madrasi Camp. He then arrested accused Murgan in the present FIR vide Ex.PW1/E. He also recorded disclosure statemnet of accused Murgan vide Ex.PW1/F. At the time of interrogation, accused Murgan admitted that he used to purchase the said illicit liquor from one Renu @ Remi, resident of Faridabad, Haryana. During further course of investigation, accused Renu got anticipatory bail FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 3 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:48:24 +0530 and joined the investigation on 13.12.2021 and handed over one mobile phone make Samsung M32 Black Colour to him and he seized vide Ex.PW1/G. She disclosed that she used the said mobile phone for WhatsApp chat and for making calls to other accused persons to sell the illicit liquor. Thereafter, he sent the mobile phone of accused Renu Ansari to FSL for its examination. He further deposed that on 23.12.2021, accused Renu again joined the investigation and she disclosed that she used to supply illicit liquor to different persons including accused Murgan. He also perused the chat of the mobile phone of accused Murgan and, thereafter, arrested accused Renu in the present case vide Ex.PW1/H and then recorded her disclosure statement vide memo Ex.PW1/H. He also recorded statement of W/Constable Pushpa who was present with him at the time of arrest of accused Renu. He then collected the FSL result which is marked as MarkA7 (colly) and Mark A8 (colly). He then prepared the charge-sheet and submitted the same before the Court. He also correctly identified the accused persons before the Court. He also identified the case property before the Court i.e. 227 quarter bottles of Race 7 "For Sale in Haryana Only" are MarkP-1 (colly) and 588 quarter bottles of Charlie Santra "For Sale in Haryana Only" are Mark P-2(colly). He was then duly cross-examined and discharged.
6. Sub-Inspector Satish Kumar was examined as PW2. He deposed that on 06.10.2021, he was posted as ASI at Inter-State-Cell, Crime Branch, Chanakya Puri, New Delhi and on that day, at around 12:30 PM, one secret informer had informed SI Kamal regarding selling of illicit liquor in the area of Madrasi Camp, Jangpura, Delhi by two groups namely, one of Murgesan and Mani and the second group consisted of Anand and Murgan and that they could be apprehended if raided upon between 05:00 to 06:00 PM. SI Kamal then shared the said information with the then Insp. / ACP / ISC Crime Branch. Upon instructions of ACP/ SI Kamal constituted two raiding teams and then briefed them about the secret information. The first raiding team FIR No. 199/2021, PS Crime Branch / SE Digitally State Vs. Anand @ Ors. Page No. 4 of 15 signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:48:33 +0530 consisted of SI Kamal, ASI Gulab, Secret informer and 4-5 other police officials whereas the other team consisted of SI Sanjeev, SI Amit, ASI Sukhvinder, HC Dinesh, HC Naveen, Constable Sandeep and himself. Both the teams then boarded in two private vehicles and reached near Nizamuddin at about 05:00 PM. SI Kamal then requested 4-5 public persons to join the investigation, however, they did not join stating their personal difficulty. No notice could be served upon the said public persons due to paucity of time. He further deposed that both the teams then proceeded for the Madrasi Camp to conduct raid at the said place. The second team stayed outside towards the Madrasi Camp on the road itself whereas the other team along with the secret informer entered the Madrasi Camp. After about 05 minutes, secret informer returned to the road where the second time was waiting. Thereafter, at the instance of secret informer, the second team also entered the Madrasi Camp and the secret informer pointed towards one jhuggi where accused Anand was seen selling illicit liquor, who had a quarter bottle in his hand. Upon seeing the raiding party, he threw away the bottle and ran away from the spot, leaving behind the cartons containing illicit liquor cartons. They tried to catch the accused but due to commotion and narrow streets, they could not caught hold off accused Anand and he fled from the spot. He further deposed that he inquired from the neighbors and the name and details of the accused Anand were obtained. They then conducted search of said jhuggi where they found 16 cartons of quarter bottles of illicit liquor and one carton was kept at the gate/ entrace of the said jhuggi. Thereafter, they seized the illicit liquor after removing 01 quarter bottle from each carton as sample. 05 Cartons of 'Race 7 For sale in Haryana Only' (containing 48 quarter bottles in each carton), while 12 cartons were of 'Charlie Santra For sale in Haryana Only' (containing 50 quarter bottles in each carton). The carton which was kept at the door was also of 'Race 7'. the said cartons were seized vide seizure memo Ex.X-1 and the case property was sealed with the seal of 'SK'. He FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 5 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:48:39 +0530 further deposed that he also filled Form M-29 Ex.PW2/A. He then prepared the rukka Ex.PW2/B and handed over the same to Constable Sandeep to get the FIR registered at the police station. He then handed over the seal after its used to Constable Sandeep vide seal handing over memo Ex.PW2/C. Investigation of the present case was marked to SI Surender Rana, who also came to the spot along with Constable Sandeep. He then handed over the seized property and the documents to SI Surender Rana. IO / SI Surender Rana prepared the site plan at his instance Ex.PW1/A. IO also recorded his statement at the office of ISC / Crime Branch. He also identified the accused Anand and sample of the case property which was produced by the MHCM before the Court. Case property is Ex.P-1. MHCM also produced destruction order of the case property vide which the remaining case property was destructed, the same is MarkP2/A. He was then cross-examined and discharged.
7. W/ Constable Pushpa was examined as PW3. She deposed that on 23.12.2021, she was posted as Constable at ISC-Chanakya Puri, New Delhi and on that day, accused Renu @ Remi Ansari was formally arrested and interrogated by the IO / SI Surender Rana in her presence vide arrest memo Ex.PW1/H. Disclosure statement of accused was also recorded in her presence vide Ex.PW1/I. She correctly identified the accused Pushpa before the Court. She was duly cross-examined and discharged.
8. Head Constable Sandeep was examined as PW4. He corroborated the same facts as of PW2 with respect to secret informer, constitution of raiding parties, members of raiding party, departure of raiding party in two private cars, arrival at the spot, raid at the jhuggi of accused, recovery of case illicit liquor, taking out of samples from the recovered case property. He further deposed that the samples which were taken out from the recovered case property, was given identification mark as S-1 to S-17. The recovered case property was then put in carton boxes and the said boxes were then put FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 6 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:48:46 +0530 in white colour cloth and pullandas were prepared and the same were sealed with the seal of "SK" and pullandas were also labeled as A-1 to A-17. He further deposed that ASI Satish filled form M-29 and then prepared tehrir, and handed over the tehrir to him for registration of the FIR. He then went to Police Station Crime Branch, Pushp Vihar and got the present FIR registered. After getting the FIR registered, he collected copy of FIR, certificate u/s 65B of Indian Evidence Act and rukka and went to the office of ISC / Chanakya Puri, Delhi and handed over the said documents to SI Surender Rana as the investigation of the present case was marked to him. Thereafter, he along with SI Surender Rana reached at the spot where IO prepared the site plan at the instance of ASI Satish. He further deposed that seizure memo of the illicit liquor was prepared vide Ex.X-1 and after sealing of the case property, seal was handed over to him. He correctly identified accused Anand before the Court. He was then duly cross-examined and discharged.
9. PW-4 HC Deepak was examined by the prosecution as PW5. He deposed that on 15.10.2021, he was posted as ASI at office of ISC / Crime Branch, Chanakya Puri, Delhi and on that day, he joined investigation with the IO and went to the jhuggis at Madrasi Camp in search of accused Anand and at the instance of secret informer, accused Anand was apprehended at about 11:00 AM and then he was brought to the office of ISC / Crime Branch, Chanakya Puri, Delhi where IO interrogated him and recorded his disclosure statement vide Ex.PW1/D. IO then arrested him vide arrest memo Ex.PW1/B and then conducted his personal search vide Ex.PW1/C and one keypad mobile phone was recovered from him. He further deposed that accused Murgan was already arrested in another case bearing FIR No. 198/2021 PS Crime Branch / SED and his police custody remand was obtained by SI Rakesh Kumar. He further deposed that accused Murgan was interrogated in the present FIR by IO / SI Surender Rana at the office of ISC / Crime Branch and his disclosure statement was recorded vide Ex.PW1/F. FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 7 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:48:54 +0530 Accused Murgan was also arrested vide Ex.PW1/E. He deposed that his statement u/s 161 CrPC was also recorded by the IO. He correctly identified accused Anand and Murgan before the Court. He was then duly cross- examined and discharged.
10. No other witness was examined by the prosecution and hence, PE was closed.
11. Thereafter, statement u/s 313 Cr.P.C. of the accused persons was recorded on 31.07.2024, wherein all the incriminating material that appeared in evidence against them, were put to them to which they stated that they are innocent and have been falsely implicated in this case. Accused persons opted not to lead defence evidence.
12. Final arguments advanced by Ld. APP for State and Ld. counsels for respective accused heard. Case file perused carefully.
13. 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.
14. The accused persons herein have been charged for an offence punishable under section 33, the Delhi Excise Act read with Section 34 IPC. The Section 33 of Delhi Excise Act 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;
FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 8 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:02 +0530
(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."
15. The case of the prosecution is that accused Anand was found in possession of illicit liquor without any permit or license. 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.
16. Ld. APP for the State has relied upon Section 52 of the Delhi Excise Act. It has been argued that where an 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.
17. 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 of the Delhi Excise Act, it shall be presumed, until the contrary is proved, that the accused FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 9 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:09 +0530 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 exercised due care in the prevention of the commission of such an offence".
18. 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.
19. In the present case, the entire story of the prosecution is based on the fact of alleged recovery of illicit liquor from the house / jhuggi of accused Anand. PW1 SI Surender Rana has stated in his cross-examination that he did not request shopkeepers in the vicinity to join the raid though it was a heavily crowded area. However, PW-2 and PW4 have stated in their examination-in- chief that when they and other members of raiding party including SI Kamal reached Nizamuddin Bus Stand, they found public persons standing on the bus stand and though SI Kamal requested them to join the raiding party but they refused. Thus, there is contradiction in testimony of PW-1 and PW-2 and PW4 and public persons could have been made a witness to the recovery, had the police taken pain to join them in the raiding party. Also, no notice u/s 160 FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 10 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:16 +0530 Cr.P.C is shown to be served upon the public persons who had refused to join the raiding party. The IO even did not note down their names and addresses.
20. 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 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.
21. Thus, it is shown on record that the complainant and the IO did not make any genuine efforts in the present case to get independent public witness joined the search proceedings despite their availability. No notice or warning is shown to have been given to public persons who had allegedly refused to join search proceedings, which also creates doubt on the story of the prosecution. Non-availability 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 have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
22. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution.
23. This Court is conscious that the prosecution case cannot be thrown FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 11 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:23 +0530 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. 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.
24. As per the testimony of the PW-1, the samples of liquor and case property were sealed with the seal of "SK". PW-2 has stated that he had handed over the seal to Constable Sandeep after use. However, there is no handing over memo of the seal to show that seal was handed over to some independent witness as claimed. Thus, the possibility that the case property might have been tampered with cannot be ruled out.
25. Further, the PW1 has deposed that he had seized the liquor bottles and the sample bottles vide memo Ex.X-1. Thereafter, he prepared the rukka. It is, therefore, clear that the seizure memo Ex.X-1 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 memo Ex.X-1. 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 memo, which came into existence before registration of the FIR. However, interestingly, the memo Ex.X-1 bears the FIR number and case details. PW-2 has admitted to inserting the FIR and case details in seizure memo Ex.X-1 by the IO of the present case. Hon'ble High Court of Delhi in Pawan Kumar Vs. 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 FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 12 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:32 +0530 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."
26. In the present case, PW-2 SI Satish Kumar has admitted that IO had added the FIR number and case particulars in memo prepared by the first IO. Hence, it has also been admitted by the witness of the prosecution that Ex.X-1 has been tempered with subsequently by him. Thus, the same leads to a doubt in the story of the prosecution that since the said document has been tempered by the police official, it is possible that the said documents were 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 persons are, therefore, entitled to the benefit of reasonable doubts.
27. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has 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 State v. Om Prakash Section 57 of the FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 13 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:39 +0530 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.
28. Further, there is no DD entry on record to show arrival or departure of the police officials of the raiding party as to when the left the office of Crime Branch for the spot. Police officials are under a statutory duty to mark their departure from and arrival in the PS in a register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 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 arrive 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."
29. In the present case, however, no DD entry record of the presence of PW-2, PW-4 and PW-5 while leaving the office of Crime Branch, Chanakya Puri, Delhi is proved by the prosecution. Hence, the fact of presence of these FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 14 of 15 Digitally signed by NUPUR NUPUR GUPTA GUPTA Date:
2025.02.12 16:49:45 +0530 police officials on the spot where the accused Anand was allegedly apprehended has come under the clouds of reasonable doubt. As already stated, the public witness who could have deposed regarding the presence of the police officials on the spot have not been examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
30. 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, the addition of FIR number and case particulars on the seizure memos raiding a doubt, and no DD entry record of the presence of the members of raiding party / police officials on the spot has been proved, 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 persons in the present case cannot be ruled out.
31. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused persons. All the accused persons are hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act. For the aforesaid reasons accused persons namely Anand, Murgan and Renu @ Remi Ansari are also acquitted of the offence punishable under Section 33 Delhi Excise Act and Section 34 IPC.
32. Case property be confiscated to State as per rules.
33. All accused persons be set at liberty.
Digitally signedPronounced in the open Court on this NUPUR by NUPUR GUPTA GUPTA Date:
12th February, 2025.
2025.02.12 16:49:51 +0530 (Dr. Nupur Gupta) Chief Judicial Magistrate South East District Saket Courts/New Delhi/12.02.2025 FIR No. 199/2021, PS Crime Branch / SE State Vs. Anand @ Ors. Page No. 15 of 15