Delhi District Court
Fir No.545/2014, Ps : Kotwali State vs Abu Sheikh on 13 November, 2018
FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Abu Sheikh
FIR No. 545/2014
PS : Kotwali
U/s 33 Delhi Excise Act.
Date of Institution : 04.09.2014
Date of reserving of order : 13.11.2018
Date of Judgment : Oral
CNR No. DLCT020042432014
J U D G M E N T
1. Serial No. of the case : 296351/2016
2. Name of the Complainant : ASI Madan Lal
3. Date of incident : 15.07.2014
4. Name of accused person :
Abu Sheikh S/o Sh. Maqbool Sheikh
R/o : Jhuggi near Railway Bridge,
Shastri Park, Delhi & Present. Address
Vegabond Bagh Deewar, Chandni
Chowk, Delhi.
5. Offence for which chargesheet
has been filed : S. 33 Delhi Excise Act.
6. Offence for which charge
has been framed : S. 33 Delhi Excise Act.
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FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh
7. Plea of accused : Not guilty
8. Final Order : Acquitted
9. Date of Judgment : 13.11.2018
BRIEF REASONS FOR ORDER:
1.Mr. Abu Sheikh, the accused herein, has been chargesheeted for committing offence punishable under Section 33, the Delhi Excise Act.
2. The case of the prosecution is that on 15.07.2014, at 09:40 a.m., at back side Dangal Maidan Parking, Near BSES Office, Chandni Chowk, Delhi, complainant ASI Madanpal was on duty patrolling alongwith Ct. Het Ram. A secret information was received that one persson was selling illicit liquor. Constable Het Ram was made a decoy customer. The accused was apprehended red handed while he was selling illicit liquor without any license or permit to the decoy customer. On a statement of the said police official, present FIR was registered. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and the accused was chargesheeted for the offence punishable under Section 33, the Delhi Excise Act.
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3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offence punishable under Section 33, the Delhi Excise Act, was framed against the accused. It was read over to him to which he pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 06 witnesses to prove its case against the accused.
5. PW1 ASI Madan Pal is the complainant. He has deposed that on 15.07.2014, he was posted as ASI at PS Kotwali. On that day, he along with Ct. Hetram was on patrolling duty vide DD entry 17B which is Ex.PW1/A, at near Bankhandi Mandir. At about 9.20 a.m., one secret informer met them and informed that one person was selling illicit liquor at back side of Dangal Maidan near BSES Office. The information was shared with 45 persons and they were asked to join investigation but none agreed and left the spot. The information was also conveyed to Page 3 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh SHO and he instructed him to conduct investigation. The raiding party was prepared in which Ct. Hetram was in plain cloths. Thereafter, without wasting any time, they proceeded to the spot with secret informer and reached there within 1520 minutes. He handed over one hundred rupee note with initial signature dated 15.07.2014 (no. ODT670422) to Ct. Hetram who was appointed as decoy customer for purchasing illicit liquor vide memo Ex.PW1/B. The secret informer pointed towards one person as seller of illicit liquor and left the spot. Ct. Hetram went to the spot where accused was selling illicit liquor. He was waiting at some distance for signal of Ct. Hetram. After some time Ct. Hetram gave signal. He rushed to the spot and immediately apprehended accused Abbu Sheikh. Ct. Hetram told him that he had purchased one quarter bottle from the accused in consideration of hundred rupees note. He handed over him the purchased bottle of illicit liquor which was having the label of "999 Power Star Fine Whisky & Red Colour for export for sale in Delhi only 180 ml". This bottle was given to him by the accused by taking out from plastic katta which accused was carrying at that time at the spot. The plastic katta was Page 4 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh also checked and it was found containing 30 quarter bottles and 5 half bottles of illicit liquor having the label of '999 Power Star Fine Whisky & Red Colour for export for sale in Delhi'. Rupee hundred note was recovered from the right side pocket of the wearing pants of the accused. The pullanda of currency note was prepared and sealed with the seal M.P. and taken into possession vide memo Ex.PW1/A. Sample of 100 ml was taken from the purchased bottle and kept in plastic bottle and pullanda of both the bottles were prepared and sealed with the seal of M.P. The serial no. SL1 was given to purchased bottle and Sample bottle was given Sl. No. S1. Both the bottles were taken into possession vide seizure memo Ex.PW1/C. Thereafter, the illicit liquor from the plastic katta was taken out and all the liquor was put in a plastic ken and and 360 ml was taken out from the plastic ken for the purpose of sample. The sample was kept in one of the five half recovered bottles. Sample was given serial no. S2 and remaining case property was kept in the in plastic ken and given the serial no. 2. The empty bottles were kept in the plastic katta and was given the serial no. 3. All these articles were sealed with the seal of M.P. and taken into Page 5 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh police possession vide memo Ex.PW1/D. Form M29 was also filled in at the spot and sealed with the same seal of M.P. The seal was handed over to Ct. Hetram. Thereafter, rukka was prepared and handed over to Ct. Hetram who went to PS to get FIR registered and returned at the spot with HC Pradeep. Rukka is Ex.PW1/E. He handed over the case property, seizure memos and accused to HC Pradeep. Thereafter, second IO HC Pradeep prepared the site plan at his instance which is Ex.PW1/F. Thereafter, second IO recorded his statement.
6. PW2 Ct. Hetram Choudhary is the police official who had acted as decoy customer. He has deposed similar to PW1. The witness has proved the arrest memo of the accused as Ex.PW2/A, his personal search memo as Ex.PW2/B and his disclosure statement as Ex.PW2/C.
7. PW3 ASI Hansraj is the Duty Officer. He has deposed that on 15.07.2014, after receiving the rukka from Ct.Hetram sent by ASI Madan Pal for registration of case, he gor recorded FIR No. 545/14 which is Ex. PW3/A (OSR). He made endorsement on the rukka which is Ex.PW3/B. He issued certificate under section 65B of Page 6 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh Indian Evidence Act which is Ex. PW3/C. He handed over the rukka and copy of FIR to Ct. Hetram to be handed over to HC Pradeep.
8. PW4 Ct. Sachin Kumar is the police official who had taken the samples to the laboratory. He has deposed that on 14.08.2014, he had joined the investigation with HC Pardeep Kumar. On that day, the samples of one small plastic bottle containing liquor sealed with the seal of MP marked S1 and one half bottle containing liquor sealed with the seal of MP marked as S2 were given to him by the IO alongwith form M29 and other documents for the purpose of depositing with the office of Deputy Commissioner excise department Vikas Bhawan, Delhi. He had obtained the material and documents from Ct. Ankul vide road certificate No.113/21/14 and he deposited them in the abovementioned office. He obtained the receiving and deposited the same with Ct. Ankul after returning. There was no alteration or any change in the sample during the period they were in his custody. IO recorded his statement. The road certificate is exhibited PW4/A.
9. PW5 Dr. P. Ranjan has deposed that on Page 7 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh 15.07.2014, he was posted as Casualty Medical Officer, AAA Hospital, Delhi. On that day at about 03:40 p.m, he had examined Abu Sheikh @ Doctor who was brought by Ct. Hetram. After examining the patient, he had prepared detailed MLC which is Ex.PW5/A. According to the records, Abu Sheikh was having simple old burn injuries of dated 13.07.2014 (As stated by Abu Sheikh himself).
10. PW6 HC Pradeep is the IO. He has deposed that on 15.07.2014, he was posted as a HC at PS Kotwali. On that day, further investigation of this case was marked to him by the directions of concerned SHO. He alongwith Ct. Hetram had reached at the spot i.e., back side Dangal Maidan Parking near BSES office, Chandni Chowk, Delhi. First IO ASI Madan Pal and accused Abu Sheikh @ Doctor were present there. First IO had handed over him two sample bottles (one half bottle and one quarter bottle filled with liquor) duly sealed with the seal of MP. One filled cane duly sealed with the seal of MP was also handed over to him. Empty bottles of liquor were also kept by the first IO in a Katta and sealed with the seal of MP which was also handed over to him. He received the copy of FIR and original rukka from Ct. Hetram. First IO had Page 8 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh handed over him relevant documents i.e., seizure memos, M29 FSL form to him. Custody of aforesaid accused was handed over to him. First IO had also handed over him one sealed envelope duly sealed with the seal of MP. He had prepared site plan which is Ex.PW1/F. He had recorded disclosure statement of accused vide memo Ex.PW2/C. He had also arrested and personally searched the accused vide memo Ex.PW2/A & Ex.PW2/B. He had recorded statements of relevant witnesses. Case properties were deposited in Malkhana. Accused was produced before the Court after his medical checkup. Case properties were sent to Excise Lab and result was placed on the case file. After necessary investigation of this case, he prepared the challan and filed before the Court.
11. The witnesses were cross examined. The prosecution evidence was closed. Accused was examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. He would state that he was falsely implicated in the present case. Nothing was recovered from his possession. He used to run a shop of Kawari. He never sold any liquor.
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12. The accused did not lead defence evidence. Therefore, matter was fixed for final arguments.
13. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identity of the accused has been established beyond reasonable doubts. All the ingredients of the offence have been proved by the prosecution. Hence the guilt of the accused has been proved. Therefore, it is prayed, the accused may be convicted.
14. Ld. Counsel for accused, on the other hand, would argue that nothing was recovered from the possession of accused at the time of his arrest and he has been falsely implicated in the present case. Ld. Counsel for accused would further contend that police had planted the said illicit liquor upon the accused with intention to send him behind bars and to settle some personal score. All prosecution witnesses are fellow police officials and they all are interested witnesses. No independent public person has been examined to prove the factum of recovery of weapon in question from accused despite spot in question being a thickly populated commercial and residential area.
Page 10 of 22 MM08/C/THC/Delhi/13/11/18FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh There are various contradictions in the testimonies of the prosecution witnesses. Benefit of doubt may be given to the accused and he may be acquitted.
15. I have heard the submissions and carefully perused the material available on record.
16. 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
17. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section reads as under:
"Section 33 Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or Page 11 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh 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;
(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."
18. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license and he was apprehended on the spot.
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19. 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.
20. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. It has been argued that where the 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.
21. 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, it shall be presumed, until the contrary is proved, that the accused 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.Page 13 of 22 MM08/C/THC/Delhi/13/11/18
FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh (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".
22. 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.
23. In the present case, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is Page 14 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh alleged to have been effected from a public place i.e., at Dangal Maidan. The PW1 in his examination has stated that he had asked the public persons to join the investigation, however, they refused. Thus, the place of recovery and apprehension of the accused is clearly located in an area where public persons were readily available. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery. There is nothing on record to show that PW1 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that nonjoining 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.
24. Thus, it is shown on record that the complainant/IO did not make any genuine efforts in the Page 15 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh present case to get independent public witness joined the search proceedings despite spot being crowded area. No notice or warning had 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 Page 16 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
25. In the present case, nonjoining of any public person as a witness creates doubt on the case of the prosecution.
26. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of nonjoining 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.
27. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the PW1 ASI Madan Pal with the seal of MP. As per the testimony of PW1, the seal was handed over to Ct. Het Ram. However, there is no handing over memo of the seal to show that seal was so handed over. Thus, the Page 17 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh possibility that the case property might have been tampered with cannot be ruled out.
28. Further, PW1 ASI Madan Pal has deposed that he had seized the recovered currency note vide memo Ex.PW1/A. He had seized the purchased quarter bottle vide memo Ex. PW1/B. He has further stated that he had seized the liquor, the sample bottle and the excise form vide memo Ex. PW1/D and thereafter prepared the rukka Ex. PW1/E. It is, therefore, clear that the seizure memos Ex.PW1/A, Ex.PW1/B and Ex. PW1/D were 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 seizure memo Ex.PW1/A, Ex.PW1/B and Ex. PW1/D. 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 seizure memo, Ex.PW1/A, Ex.PW1/B and Ex. PW1/D, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex.PW1/A, Ex.PW1/B and Ex. PW1/D bear the FIR number and case details in the Page 18 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh same handwritings in which the said documents were prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Hon'ble High Court of Delhi in Pawan Kumar v. 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 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.Page 19 of 22 MM08/C/THC/Delhi/13/11/18
FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh 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."
29. 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 SubInspector Narender Kumar Tyagi (PW7), 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 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 Page 20 of 22 MM08/C/THC/Delhi/13/11/18 FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh the contraband in the manner alleged by the prosecution."
30. In the present case also, no explanation is available on record as to how the FIR number and case details had appeared on the seizure memo Ex.PW1/A, Ex.PW1/B and Ex. PW1/D. The same leads to only one conclusion that either 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 is therefore entitled to the benefit of reasonable doubts.
31. 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 and the appearance of FIR number and case particulars on the seizure memo has not been explained, 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 in the present case cannot be ruled out.
32. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused.
Page 21 of 22 MM08/C/THC/Delhi/13/11/18FIR No.545/2014, PS : Kotwali State Vs Abu Sheikh The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
33. Case property be confiscated to State as per rules.
Pronounced in the open Court on (Dinesh Kumar) this 13th day of November 2018. MM08 (Central) Tis Hazari Courts, Delhi.
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