Delhi District Court
State vs . Raj Kumar @ Raju on 30 June, 2023
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SOUTH EAST):SAKET
COURTS:NEW DELHI
Presided by : Ms. SONAM SINGH-I
State Vs. Raj Kumar @ Raju
FIR No. 01/2016
Police Station: Badarpur
Under Section: 33 Delhi Excise Act
Date of institution : 23.02.2018
Date of reserving : 22.06.2023
Date of pronouncement : 30.06.2023
JUDGMENT
a) The Serial number of : 1109/2018
the case
b) Date of commission of : 01.01.2016
offence
c) Name of the : Ct. Om Prakash
complainant
d) Name, parentage and : Raj Kumar @ Raju, S/o
address of the accused Sh. Kailash, R/o H. No.
A-448, Phase-II,
Gautampuri, Badarpur,
New Delhi.
e) Offence complained of : Section 33 Delhi Excise Act
f) Plea of the accused : Accused pleaded not guilty
g) Final order : Accused Raj Kumar @ Raju stands acquitted of the offence punishable under Section 33 Delhi Excise Act
h) Date of final order : 30.06.2023 State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 1 of 15 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1. Vide this judgment, the accused Raj Kumar @ Raju stands acquitted of the offence punishable under Section 33 Delhi Excise Act in this case for the reasons mentioned below:
CASE OF THE PROSECUTION:
2. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is that on 01.01.2016, at about 04:25 PM, at Onida Factory bus stop, on the road going towards Ashram, Mohan Cooperative, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, the accused was found in possession of 100 quarter bottles of 180 ml each bearing label of 'Taja Santara Masaledar Desi Sharab for sale in Haryana only' in violation of Rule 20 of Delhi Excise Rules 2010, and thereby, committed an offence punishable U/s 33 Delhi Excise Act.
3. The investigation was done by the IO/HC Rajender Singh who filed the police report under Section 173 of the Cr.P.C. in respect of the offences punishable under Section 33 Delhi Excise.
COURT PROCEEDINGS
4. The learned predecessor of this court took cognizance upon the said police report on 23.02.2018 and on appearance, the State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 2 of 15 copies of chargesheet with its documents was supplied to the accused.
CHARGE
5. Vide order dated 10.01.2019, the learned predecessor of this court framed the charge against the accused for the offence punishable under Section 33 Delhi Excise. of the IPC, to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. Thereafter, the matter was listed for prosecution evidence.
(i) Prosecution Witnesses:
In order to prove and substantiate its case, the prosecution in all has examined four witnesses, namely:
Designation and Name Role in the present case Sr. No. of the Witness
1. PW1 HC Om Prakash Complainant
2. PW2 HC Dinesh Duty Officer
3. PW3 ASI Mahesh Witness deposited sample to Excise Lab.
4. PW4 SI Rajender Singh Investigating Officer State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 3 of 15
(iii) Documents on record:
The prosecution witnesses relied on the following documents:
Sr. No. Exhibits/Marks Nature of documents
1. Ex.PW1/1 Complaint
2. Ex.PW1/2 Arrest Memo
3. Ex.PW1/3 Personal search Memo
4. Ex.PW1/4 Disclosure statement
5. Ex.PW1/5 Seizure memo of illicit liquor
6. Ex.PW1/6 Site Plan
7. Ex.PW2/1 Rukka
8. Ex.PW2/2 Copy of FIR
9. Ex.PW2/3 Certificate U/s. 65 B of IE Act
10. Ex.PW2/4 DD No.39A
11. Ex.PW4/1 Rukka
12. Ex.PW4/2 Form M-29
13. Ex.P1 Sample quarter bottle
14. Ex.P2 Photograph of case property
15. Ex.P3 Case property destruction order.
State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 4 of 15
7. Accused was examined U/s 294 CrPC on 25.05.2023 wherein he admitted the documents i.e. DD No.44B and 48B dated 01.01.2016 as Ex. A-1(Colly) and Chemical Analysis Report as Ex.A-2.Thereafter, prosecution evidence was closed vide order dated 25.05.2023. The court will discuss the testimonies of the said witnesses later i.e., at the time of appreciation of evidence.
THE STATEMENT OF THE ACCUSED PERSONS UNDER SECTION 313 Cr.PC. / DEFENCE OF THE ACCUSED PERSONS:
8. The accused in his statement under Section 313 Cr.P.C, on 25.05.2023 denied the entire evidence put to him. He stated that he is innocent and has been falsely implicated in the present case. He did not wish to lead Defence evidence.
FINAL ARGUMENTS:
9. The Court heard the final arguments on 22.06.2023.
ANALYSIS AND FINDINGS:
10. I have heard the submissions of learned APP for the State as well as that of Sh. Ajay Sharma, learned counsel for the accused. The court has also diligently gone through the charge-
sheet, documents, evidence recorded and the entire material on record.
State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 5 of 15
11. In short, the case of the prosecution is that on 01.01.2016 at about 04:25 PM, at Onida Factory bus stop, on the road going towards Ashram, Mohan Cooperative, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, the accused was found in possession of 100 quarter bottles of 180 ml each bearing label of 'Taja Santara Masaledar Desi Sharab for sale in Haryana only' without any permit or licence.
12. The court is of the opinion that the prosecution has failed in proving its case, which is apparent from the discrepancies put in the case of the prosecution. The discrepancies and defects in the case of the prosecution are discussed below.
NON-JOINDER OF PUBLIC WITNESSES:
13. In the present case, there is no independent public witness to corroborate the alleged recovery of the illicit liquor from the possession of the accused Raj Kumar @ Raju. PW1 HC Om Prakash who is the complainant as well as recovery witness in this case deposed that on 01.01.2016, he alongwith Ct. Mahesh were on beat patrolling duty from 04.00 PM to 12.00 Midnight. He deposed that at about 04.15 PM, he received information from a secret informer that a person would come with illicit liquor on road from Faridabad side and going toward Sarita Vihar Road. He deposed that he was informed that the suspect would be going to Aali Village. He further deposed that on receipt of said information they came to Gautampuri Bus Stand and crossed the road and were stationed on the opposite side from bus stand.
State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 6 of 15
14. PW1 HC Om Prakash deposed that at about 04.32 PM, they saw that theaccused was coming from the side of Faridabad carrying a white colour plastic katta on his head. He further deposed that accused was apprehended by him with the help of Ct. Mahesh after being chased for 20-25 steps. He deposed that on checking the said katta, it was found containing illicit liquor and revealed his name as Ram Kumar son of Kailash, R/o. Gautam Puri, Phase-II. He further deposed that the information of apprehension of accused with illicit liquor was given at PS. He deposed that thereafter, after some time IO HC Rajender came to the spot who conducted investigation in this case. It is pertinent to note that PW1 HC Om Prakash during his examination in chief or his cross examination remained silent on the point of availability of any public persons during the whole proceedings conducted at the spot.
15. PW4 is SI Rajender Singh who is the IO of this case. He deposed that on receipt of information over phone regarding apprehension of accused with illicit liquor at Onida Bus Stand by HC. Om Prakash and Mahesh, he alongwith Ct.Amit went to the spot. He further deposed that HC. Om Prakash and Ct. Mahesh handed over accused Raj Kumar @ Raju alongwith recovered illicit liquor to him. He checked the plastic katta and found 100 quarter bottles of "Taja Santra Masaledar Desi Sharab " for Sale in Haryana only". He further deposed that he prepared rukka and handed over the same to Ct. Mahesh who went to police station for registration of FIR. He further deposed that he asked 4-5 persons to join the investigation, but no one agreed to State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 7 of 15 join the same by citing their own reasons.
16. The recovery of prohibited articles, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the case of the prosecution. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. Hence, in the absence of any joinder of any independent witness in the investigation, false implication of the accused by the local police in the present case cannot be ruled out.
17. The aforesaid observation of the Court is fortified by following observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...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 State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 8 of 15 Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to 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..."
18. Similar opinion was expressed by Hon'ble Delhi High Court in case titled Anoop Joshi vs. State 1992 (2) CCC 314 (HC) wherein it was held:
"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 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 rigors 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."
19. The aforesaid depositions of PW1 HC Om Prakash and PW4 IO/SI Rajender Singh, shows that they have failed to give any plausible explanation for non-joining of the public witnesses in the investigation despite their availability. This casts a serious doubt about the veracity of the entire prosecution case of the accused being in possession of the illicit liquor.
20. This Court is, however, conscious that the case of the State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 9 of 15 prosecution cannot be thrown out merely on the sole ground of non-joining of public witnesses. The reason is that public witnesses generally avoid court related proceedings 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 version but there are other circumstances as well, as described below, which raise suspicion over the prosecution version.
OMISSION TO PREPARE HANDING OVER MEMO OF THE SEAL:
21. The PW1 HC Om Prakash and PW4 IO /SI Rajender have not uttered a single word with regard to the seal handing over memo used to seal the case property was prepared or not. In these circumstances, the possibility of tampering with case property cannot be ruled out. Even otherwise, the failure to prepare any such document for this purpose also leads to a missing link in the entire series of investigation raising doubt over the manner of investigation conducted.
DUTY RECORD/ DEPARTURE ENTRY OF RECOVERY WITNESS NOT PROVED
22. The present case rests entirely on the alleged recovery of alleged illicit liquor from the possession of the accused at the relevant time by a police official, the complainant, namely HC Om Prakash. As public persons were not joined in the State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 10 of 15 investigation, it becomes important for the prosecution to show the presence of police officials in the concerned area at the relevant time. Thus, in this regard, the duty record and departure entry of the said recovery witness assume significant importance.
23. As per, Chapter 22 Rule 49 of Punjab Police Rules, 1934, the police officials are under a mandate to make entries as regards the hour of whenever they arrive or leave the police station for their duty. The said rule is reproduced below:
"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 arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
24. Further, in the judgment in a case titled as Rattan Lal versus State 1987 (2) Crimes 29, the Hon'ble Delhi High Court held that in case the investigating agency is violative of a law provision, then the court should view the matter with suspicion. The relevant paragraph of the said judgment is reproduced below:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 11 of 15 can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
25. In view of the aforesaid legal provision and judgment, it is seen that the record of DD entries of the complainant/recovery witness PW1 Ct. Om Prakash and recovery witness Ct. Mukesh are not placed on record. The prosecution did not file any documentary evidence to substantiate the fact that the PW1 Ct. Om Prakash who apprehended the accused was on patrolling duty. Proof of the said record is indispensable as the present case rests solely on the alleged recovery made by the aforesaid police official. There are only two DD entries but they do not show that PW1 Ct. Om Prakash and recovery witness Ct. Mukesh were on patrolling duty, . Since no DD entry has even been placed on record to show the presence of recovery witnesses/ police officials at the spot at the relevant time, creates a reasonable doubt in the prosecution version.
EFFORTS REGARDING SOURCE OF ILLICIT LIQUOR:
26. There is no iota of evidence regarding the efforts made by the police officials to find out about the source from where the illicit liquor was arranged for by the accused.
State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 12 of 15 DISCREPANCIES IN THE CASE OF THE PROSECTION:
27. An aspect to be considered is that the sample brought to the court was admittedly unsealed, as is revealed from the testimony of PW-4, SI Rajender Singh/IO in his examination in chief. This fact also raises a doubt on the case of the prosecution as PW-4, SI Rajender Singh had deposed that the sample quarter bottle was sealed with the seal of RS and hence, it could not be proved that the unsealed sample was the sample recovered from the accused
28. Further, from perusal of testimony of both PW1 HC Om Prakash and PW4 IO ASI Rajender Singh, it is found that both these witnesses have not deposed a single word about their effort to get the alleged recovery photographed or videographed. Further, they both have failed to depose that, if any CCTV camera was installed near the alleged spot of recovery of illicit liqour. Hence, the said discrepancy makes the story of prosecution doubtful.
29. Another pertinent fact to be considered is the order of the Assistant Commissioner (Excise) dated 23.06.2016, whereby the case property of the present case at entry no. 2, has been ordered to be destructed. In Manjit Singh vs. State (2014) 214 DLT 646, the Hon'ble High Court of Delhi had observed that detailed panchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para No. 75 that the sample alongwith photographs State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 13 of 15 and panchnama would be sufficient evidence during trial. In the present case, no panchnama was produced. Photographs of the entire lot of the case property were not produced, however, as is revealed by perusal of the with respect to the photographs Ex.P2(Colly) on record that the contents of the gunny bag are not visible in the photograph. In this regard, even though Section 60 of the Excise Act provides that non production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. Without any proper photographs and an unexplained unsealed bottle Ex. P1, the case cannot be said to be proved beyond reasonable doubt.
30. The aforesaid facts stated in the testimony of PWs makes the presence of the complainant/recovery witnesses and first IO on the spot and in respect of recovery of the alleged illicit liquor from the accused doubtful.
CONCLUSION:
31. The burden of proof on the prosecution is to prove the case by leading convincing evidence to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted based on mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof. Every benefit of doubt goes in favour of accused.
32. In view of the above discussions, since the State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 14 of 15 prosecution has miserably failed to prove its case beyond all shadow of reasonable doubts, the accused Raj Kumar @ Raju stands acquitted for the offence U/sec. 33 of Delhi Excise Act.
33. Case property, if not destroyed, be forfeited to the state, to be destroyed after the expiry of the period of appeal or revision, if any.
34. File be consigned to records after due compliance.
Dictated and announced in the open Court on 30.06.2023 (SONAM SINGH-I) ACMM (SOUTH EAST):
SAKET COURTS :NEW DELHI State Vs. Rajkumar @ Raju FIR No. 01/2016, P.S. Badarpur page 15 of 15