Delhi District Court
State vs . Dharmender on 8 July, 2023
IN THE COURT OF SH. AYUSH SHARMA, MM-02, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
STATE VS. DHARMENDER
FIR NO. 103/2015
PS: KANJHAWALA
U/s 33 Delhi Excise Act
Date of institution of the case : 08.11.2016
Date of judgment reserved : 09.06.2023
Date of commission of offence : 04.02.2015
Name of the complainant : Ct. Anil No. 2411/OD,
PS Kanjhawala.
Name of accused and address : Dharmendra S/o Kishanlal R/o
0-210, JJ Colony, Sawda, Delhi.
Offence complained of : 33 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Date of Judgment : 08.07.2023
Final order : Held not guilty/Acquitted.
JUDGMENT
1. Briefly stated that the case of the prosecution against the accused is that on 04.02.2015 at about 07.00 pm at O Block, JJ Colony, Sawda, Delhi, within the jurisdiction of Police Station Kanjhawala, accused was found in possession of four carton boxes out of which two boxes were containing 12 bottles each of illicit liquor bearing label Asli Santra Masaledar Desi Sharab for sale in Haryana only and the other two boxes were containing 24 half bottles each of Asli Santra Masaledar Desi Sharab for Sale in Haryana only, without having any permit or license for possession or transportation of the same. On that basis, the present FIR was registered against the accused. Upon completion of investigation, charge sheet u/s 33 of Delhi Excise Act was filed and the accused was sent for trial.
2. The ld. Predecessor of this court took cognizance of the offence and issued process against the accused. Pursuant to the appearance of the accused, he was supplied with the copy of chargesheet in compliance of Section 207 CrPC. Upon hearing the arguments, vide order dated 23.05.2018, charge under Section 33 Delhi Excise Act Digitally signed by AYUSH AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:08 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 1 / 9 was ordered to be framed against the accused. The accused pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
3. In order to establish its case against the accused, prosecution has examined six witnesses namely HC Anil Kumar ('PW1'), ASI Anand Kumar ('PW2'), HC K Atma Ram ('PW3'), Bijender Singh Tomar ('PW4'), HC Manish ('PW5') and ASI Anil Kumar ('PW6').
4. PW1 HC Anil Kumar deposed that on 04.02.2015, he was on patrolling duty in Sawda, JJ Colony and at around 7 pm, he saw a person arranging the pettis of gatta. He further deposed that on checking the said petties 12 bottles each of Santra Masaledar Desi Sharab for sale in Haryana only were found in two petties and 24 half bottles each of Santra Masaledar Desi Sharab for sale in Haryana only were found in other two petties. He apprehended the accused and handed it over to PW5 who came to the spot along with the case property. He further deposed that PW5 recorded his statement Ex. PW1/Aand sealed the case properties after taking out the samples with the seal of 'AK' and prepared the seizure memo Ex. PW1/B. He further deposed that PW5 handed him over him the rukka to get the FIR registered who accordingly did so and returned to the spot. He correctly identified the accused in the court and the photographs of the case property taken at the time of destruction of case property Ex. P1.
5. In his cross-examination by Ld. Counsel for defence, PW1 stated that he reached the spot at around 7 pm and the accused was arranging the liquor at nearby road. He further stated that he went to PS along with rukka at around 9 pm and returned to the spot at around 10 pm. He further stated that the case property was taken back in the personal car of PW5. He denied that he is deposing falsely.
6. PW2 ASI Anand Kumar deposed that on 4.02.2015, he was informed by PW1 that one person has been apprehended with illicit liquor. He further deposed that he mentioned that same in roznamcha vide DD No. 24 A Ex. PW2/A and informed the same to PW5 Digitally signed who went to the spot. AYUSH by AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:17 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 2 / 9
7. This witness was not cross-examined by Ld. Counsel for defence despite opportunity being given.
8. PW3 HC K Atma Ram deposed that on 4.02.2015, at around 9.25 pm, PW1 came to PS with original tehrir and on receipt of the same, he got the FIR Ex. PW3/A registered through CIPA operator and made his endorsement Ex. PW3/C.
9. This witness was not cross-examined by Ld. Counsel for defence despite opportunity being given.
10. PW4 Bijender Singh Tomar deposed that on 13.02.2015, four sealed samples along with excise form No. 29 were received by the Excise Office and the same were marked to Anil Kumar for chemical examination. He further stated that the excise result Ex. PW4/A was prepared in his supervision.
11. This witness was not cross-examined by Ld. Counsel for defence despite opportunity being given.
12. PW5 HC Manish deposed that on 13.02.2015, he collected the samples from the MHCM vide RC No. 16/21/15 and deposited the same in Excise department. He further stated that till the time samples remained in his custody no tampering was done.
13. This witness was not cross-examined by Ld. Counsel for defence despite opportunity being given.
14. PW6 ASI Anil Kumar deposed that on 04.02.2015, on receipt of DD No. 24 A, he went to Sawda JJ Colony, O Block, near Pulia, where PW1 produced the case property and the accused before him. He further deposed that he counted the illicit liquor and requested 4-5 people to join the investigation but none of them agreed. He Digitally signed AYUSH by AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:29 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 3 / 9 further deposed that he took out the samples and filled form No. 29 and sealed the case property and the samples with the seal of AK and handed it over after use to PW1. He further stated that he thereafter prepared the seizure memo Ex. PW1/B, rukka Ex. PW6/A and got the FIR registered through PW1. He further stated that he thereafter prepared the site plan Ex. PW6/B and interrogated the accused. He thereafter sent the samples to excise laboratory and after obtaining the result filed the chargesheet before the court. He correctly identified the accused in court.
15. In his cross-examination by Ld. Counsel for defence, PW6 deposed that he reached the spot at around 7.30 pm and the accused was arranging the liquor nearby the road. He further stated that he took the case property in his personal car. He has further stated that the case property was taken by bike. He further accepted that other brands of illicit liquor are also visible apart from the liquor alleged to have been recovered from the accused in photographs Ex. P1 (Colly).
16. Accordingly, vide order dated 19.05.2023, PE was closed. In the statement recorded u/s. 313 CrPC, accused denied the case of the prosecution and pleaded innocence. He stated that he has been falsely implicated by the police officials and the case property was planted upon him. He did not opt to lead defence evidence.
17. Sh. Dinesh Kumar, Ld. APP has submitted that the case is proved beyond reasonable doubt as the witnesses have identified the case property and the accused during their deposition. He has submitted that due to non-cooperation by public witnesses it gets difficult to ensure their presence at the time of seizure of case property. It is also submitted that such offences cause great revenue loss to the state and the accused be convicted of the offence charged u/s 33 Delhi Excise Act.
18. Per Contra, Sh. SP Singh Maan, Ld. Counsel for defence has submitted that that accused is completely innocent and has been falsely implicated in the present case and the alleged recovery of illicit liquor has also been falsely planted upon him. It is further submitted that not joining the public witnesses despite availability and not Digitally signed AYUSH by AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:34 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 4 / 9 serving any notice to them by the police officials cast shadow of doubt on the story of prosecution. He has also argued that the seal was not handed to an independent witness and therefore, tampering with the contents of the sealed parcel can also not be ruled out. At the end, he has submitted that the prosecution has completely failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
19. I have heard the submissions of Ld. APP for State and the Ld. Counsel for accused and carefully perused the judicial record. The scrutiny of the testimony of PW1 and PW6 reveal that the accused was found in possession of four carton boxes out of which two boxes were containing 12 bottles each of illicit liquor bearing label Asli Santra Masaledar Desi Sharab for sale in Haryana only and the other two boxes were containing 24 half bottles each of Asli Santra Masaledar Desi Sharab for Sale in Haryana only.
20. The recovery is alleged to have been effected at on 04.02.2015 at about 07.00 pm at O Block, JJ Colony, Sawda, Delhi. The place of recovery and timing of arrest is such that the presence of independent witnesses cannot be ruled out as the place of recovery is clearly located in an area where public persons would be readily available. Pertinent is that it is not the case of the prosecution that no public witnesses were available at that time, rather PW1 and PW6 in their cross have specifically stated that the accused was arranging the liquor on the nearby road when he was caught. It is inconceivable to a reasonable mind that the accused will arrange the illicit liquor on the public road. Whether association of such persons as public witnesses was possible in the facts and circumstances of this case is a fact and the burden to prove the same lies on prosecution. The arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. 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.
Digitally signedAYUSH by AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:40 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 5 / 9
21. The aforesaid flaw in the investigation makes the story of the prosecution unworthy of credit, specifically in the light of judgment in the case titled Anoop Joshi vs. State 1992 (2) C. C. Cases 314 (HC) wherein Hon'ble High Court of Delhi observed:
"18. It is repeatedly laid down by this court that in such case, it should be shown by the police that sincere efforts had been made to join independent witnesses. In the present case, it is evident to note 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 laws while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
22. There is nothing in the testimony of PW1 or PW6 whether any sincere efforts were made by them to join independent witnesses in the proceedings / investigation. The only explanation accorded by PW6 (in his chief) is that he asked the public persons to join the investigation but none agreed. Such an ordinary reply/ explanation of the witnesses does not support the case of prosecution. Pertinent is the Section 100 (4) CrPC also mandates the police official conducting search to join two respectable persons of the society. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the local police in the present case cannot be ruled out. The aforesaid view of this court is further fortified by the observations made by Hon'ble Delhi High Court in Pawan Singh v. The Delhi Administration 1989 Cri.L.J 127, wherein a similar view has been taken.
23. This court is conscious that the case of the prosecution cannot be thrown out or doubted on the sole ground of non-joining public witnesses. However, the aforesaid lapse on the part of the police officials assumes significance on account of another grave contradiction apparent in document Ex. PW1/B. PW6 has deposed that after seizure of the case property vide memo Ex. PW1/B, PW1 was sent with original tehrir for getting the FIR registered. The FIR was therefore, admittedly registered after the preparation of seizure memo Ex. PW1/B. Accordingly, it follows that the number of Digitally signed AYUSH by AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:51 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 6 / 9 FIR would come to the knowledge of IO/PW6 only after a copy of FIR is brought to the spot by PW1. Thus, ordinarily, the FIR number should not find mention in the seizure memo Ex. PW1/B, which came into existence before the registration of FIR. This court notices that surprisingly, the seizure memo Ex. PW1/B bears the FIR number and the case details in the same ink and the same handwriting in which the documents were prepared. It raises a doubt that the entire paper work was done by the police officials at the police station itself. This also raises doubt about the recovery of the said case property from the present accused and strengthens the possibility of planting of the case property upon the accused. In this regard, reference can be made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/s State 1999 VI AD (Delhi) 569 wherein it was observed:
"4. 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 memos (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 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 circumstances 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."
24. It is further notable that PW6 in his examination-in-chief has deposed that the seal after use was handed over to PW1. Significantly, there is no handing over memo/or any other document regarding the same on record. There is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station. 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 reasonable Digitally signed by AYUSH AYUSH SHARMA SHARMA Date: 2023.07.08 16:01:57 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 7 / 9 and rational manner of investigation as claimed by prosecution.
25. The prosecution has also failed to bring on record any DD entry showing the departure of PW1 from the police station. Such a deficiency which basically is nothing but the violation of Rule 22.49 Punjab Police Rules which is adverse to the prosecution version. Since public persons were not joined in the investigation, the departure entry of PW1, who was allegedly on patrolling duty at the spot at the relevant time and had apprehended the accused with the case property, becomes a vital piece of evidence. This also raises a serious doubt as to the recovery of illicit liquor from the possession of accused and creates a dent in the case of the prosecution.
26. To point further infirmities, PW1 during his cross-examination states that the case property was taken to PS in personal car of IO whereas PW6 during his cross- examination states that the case property was taken to PS on bike. Significantly, PW6 during his cross-examination has also admitted that in the photograph Ex. P1, other brands of illicit liquor are also visible apart from the liquor alleged to have been recovered from the accused. This also creates a dent in the case of the prosecution and raises a serious doubt on the recovery alleged to have been made from the accused.
27. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., A.I.R. 1976 SC 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R. (Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to Digitally signed by AYUSH AYUSH SHARMA SHARMA Date: 2023.07.08 16:02:04 +0530 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 8 / 9 prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
28. The fact that no independent witnesses were cited or examined, possibility of misuse of seal has not been ruled out, appearance of FIR number and case particulars on the seizure memos has not being explained and the other infirmities as pointed out above, when kept in juxtaposition to each other, cast a serious doubt over the case of the prosecution. In view of what has been taken note by me, the possibility of false implication of the accused cannot be ruled out. Thus, in view of the foregoing analysis, this court is of the considered opinion that the aforesaid contradiction in the case of the prosecution are sufficient enough to raise a doubt on the veracity of the entire prosecution case against the accused and extend the benefit of doubt to them. Hence, accused Dharmendra S/o Kishan lal is held not guilty and stands acquitted of the offence punishable under Section 33 of Delhi Excise Act, 2009. File be consigned to record room as per rules. AYUSH AYUSH SHARMA Digitally signed by SHARMA Date: 2023.07.08 16:02:13 +0530 Announced in Open court (Ayush Sharma) On 8th July, 2023 MM-02, North-West District Rohini Courts/08.07.2023 This judgment consists of 9 pages and each and every page of this judgment is signed by me. AYUSH Digitally signed by AYUSH SHARMA SHARMA Date: 2023.07.08 16:02:20 +0530 (Ayush Sharma) MM-02, North-West District Rohini Courts/08.07.2023 State vs. Dharmender FIR No. 103/2015 PS Kanjhawala Page No. 9 / 9