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Delhi District Court

State vs . Shanti on 2 September, 2022

           IN THE COURT OF SH. JITENDRA PRATAP SINGH,
             CHIEF METROPOLITAN MAGISTRATE (EAST):
                   KARKARDOOMA COURT: DELHI

FIR No.       : 368/2010
PS            : Kalyanpuri
U/s           : 33 Delhi Excise Act.

                             STATE Vs. SHANTI

JUDGMENT

A.New No.                      2363/2016
B Name of the complainant HC Gautam Soni,             No.   371/E,   PS
                          Kalyanpuri, Delhi.
C Name of the accused     Smt. Shanti W/o Late Sh. Dalip Singh,
  persons & their         R/o H.No. 11/254, Kalyanpuri, Delhi.
  parentage and addresses
D Offence Complained of        33 Delhi Excise Act.
E Date of commission of 21.11.2010
  offence.
F Date of Institution          14.11.2011
G Offence Charged              33 Delhi Excise Act.
H Plea of the accused         Pleaded not guilty.
I Order Reserved on            02.09.2022
J Date of Pronouncement        02.09.2022
K Final Order                  Acquitted




FIR No. 368/2010
PS Kalyanpuri                           Page 1 of 8
State vs. Shanti
             BRIEF STATEMENT OF REASONS FOR DECISION:

1. The case of prosecution in brief is that on 21.11.2010 at about 3.40 PM at 11/257, Kalyanpuri, Delhi, within the jurisdiction of PS Kalyanpuri, the accused Shanti was found in possession of illicit liquor as mentioned in the seizure memo Mark X without having any valid permit or licence. Police recorded the statement of the complainant/HC Gautam Soni, which statement became bedrock of the instant case. On the basis of the said statement case FIR No. 368/2010 was registered at PS Kalyanpuri and investigation was conducted.

2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. Charge of accusation for the offence punishable U/s 33 of the Delhi Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution has examined seven witnesses.

4. PW­1 HC Bir Singh deposed that on 21.11.2010, he was working as duty officer and on the basis of rukka, he had registered the present case FIR, which is Ex.PW1/A and also made endorsement on the rukk vide Ex.PW1/B.

5. PW­2 Ct. Ranbir Singh deposed that on 21.11.2010, he was on patrolling duty in the area of PS Kalyanpuri. At about 3.30pm, when he reached near the State Bank, 11 Block, Kalyanpuri, Ct.

State vs. Shanti Rajesh informed him that a lady was selling illicit liquor at her H.No. 11/257, Kalyanpuri, Delhi. They requested four or five passersby to join the raiding party, but none agreed. Those persons left the spot without disclosing their names and addresses. Thereafter, he along with Ct. Rajesh reached the aforesaid house and entered the house and searched it. They found 6 cartons (gatta patties) covered with cloth, out of which 2 cartons were containing Kingfisher beer (650ml), while one carton was containing Murthal No.1 Desi Sharab (12 bottles of 750ml each), other 2 cartons had 17 bottles of 750ml each of Halchal Desi Sharab and the last carton was containing 24 quarter bottles (180 ml each) of Bag Piper Whiskey. Accused Shanti was also present near the case property and her children were also there. The witness conveyed information to the PS. After some time ASI Lal Chand reached the spot along with Ct. Ruby. They handed over the custody of case property to IO/ASI Lal Chand. IO checked all the cartons and took out one bottle of 750 ml each of the 5 boxes and a quarter bottle from the sixth box as samples. All the samples were separately wrapped with white cloth and sealed with seal of LCM. As per the direction of the IO, the witness brought 6 plastic sacks (kattas) from a nearby shop. All the recovered bottles above mentioned were put back in the respective cartons. All cartons were kept in separate plastic bags which were tied with white cloth and sealed with seal of LCM. IO filled up the form M­29. Seal after use was handed over to him. The above mentioned case propety was taken into possession vide seizure memo Ex.PW2/A bearing his signature at point A. Thereafter, IO recorded his statement FIR No. 368/2010 PS Kalyanpuri Page 3 of 8 State vs. Shanti Ex.PW2/B bearing his signature at point A and prepared the rukka and handed over the same to him for registration of FIR. He came back to the spot after registration of FIR and gave the copy of FIR and original rukka to IO. Thereafter, accused was arrested and personally searched vide memos Ex.PW2/C and Ex.PW2/D respectively. Personal search of accused was taken by Ct. Ruby. Thereafter, they all came back to the PS along with case property and accused. IO recorded his statement. He identified the accused correctly and also identified the case property exhibited as Mark X­1 and X­2.

6. PW3 W/Ct. Ruby Chaudhary deposed the similar facts as deposed by PW2 Ct. Ranbir Singh and identified the accused as well as the case property exhibited as Ex.P1 and P2 (colly.).

7. PW4 HC Ram Sagar deposed that he had collected sample from the malkhana along with form M­29 which were duly sealed. He deposited the same at Excise Lab, ITO for its inspection vide RC No. 13/121/11. Thereafter, he received the receiving and handed over the same to MHC(M) and deposed that till the sample remained in his possession, the same was not tampered with by anyone.

8. PW5 HC Khillu Singh deposed that he handed over the sealed pullanda/sample to Ct. Ram Sagar (PW4) who had deposited the same at Excise Lab, ITO vide RC No. 13/121/11. He proved the copy of road certificate as Ex.PW5/A bearing his signature at point A.

9. PW6 ASI Lal Chand had corroborated the testimony of PW2 Ct. Ranbir Singh and PW3 Ct. Ruby Chaudhary. However, he further proved the tehrir Ex.PW6/A prepared by him for registration of FIR No. 368/2010 PS Kalyanpuri Page 4 of 8 State vs. Shanti present case FIR. He also identified the accused as well as the case property exhibited as Ex.P1 and P2 (colly.) correctly in the Court.

10. PW7 ASI Rajesh deposed that on 21.11.2010, he was posted at Excise Department as Constable. On that day, he received secret information that one lady Shanti had illicit liquor in her house at 11 Block, Kalyanpuri, Delhi. Near the spot, Ct. Ranbir Singh met him. He shared the information with him. This witness too is one of the members of the team consisting of PW2 Ranbir Singh, PW3 Ct. Ruby Chaudhary, PW6 ASI Lalchand and as such this witness too deposed similar facts as deposed earlier by PW2 Ct. Ranbir Singh, PW3 Ct. Ruby and PW6 ASI Lalchand.

11. PW8 ASI Gautam Soni deposed that he was handed over the present case by the MHC(R) and appointed as IO of the case. He started investigation and collected six sample of liquor bottles from the malkhana and it was sent to the Excise Department by Ct. Ram Singh, which is Ex.PW8/A. He proved the result of analysis as Ex.PW8/B. Finally, he prepared the chargesheet and filed the same before the Court.

12. All the relevant witnesses have been cross examined by the Ld. Defence counsel.

13. It is relevant to mention that on 21.03.2022, accused Shanti had made a statement U/s 294 Cr.P.C. thereby admitting that she does not dispute the chemical examiner's report and had no objection if the chemical examiner is not summoned to prove formally the said report.

State vs. Shanti

14. Upon closure of the PE, the statement of accused U/s 313 Cr.P.C was recorded wherein the accused denied all incriminating evidence put to him and pleaded her innocence. However, she stated that she has been falsely implicated in the instant case at the instance of police officials. Further, she opted not to examine any witness in her defence.

15. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused and have also perused the record.

16. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. In the present case, no departure entry of the police officials on patrolling duty has been proved on record by the prosecution by examining any person allegedly apprehending the accused in this regard. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.

17. In the present case, as per the police witnesses, public persons were requested to join the investigation by the IO but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore, it is clear that sincere efforts were not made to join FIR No. 368/2010 PS Kalyanpuri Page 6 of 8 State vs. Shanti independent witnesses despite their availability which causes a serious dent in the story of the prosecution. The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.

18. Admittedly, the seal after sealing the case property and the sample was not handed over to any independent person which creates a doubt on the integrity and authenticity of the sample. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as :

"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".

19. Similarly has been held in Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 SCC 773.

20. Even no statutory presumption in terms of section 52 of the Act, can be drawn against the accused as the alleged recovery of liquor from the accused has become doubtful in view of the reasons mentioned above. Hence, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of FIR No. 368/2010 PS Kalyanpuri Page 7 of 8 State vs. Shanti the accused beyond all reasonable doubt. Accordingly, accused Smt. Shanti stands acquitted of the charge leveled against her.

21. Ordered accordingly.

Announced in the Open Court (Jitendra Pratap Singh) On this 2nd Day of September, 2022 Chief Metropolitan Magistrate Karkardooma Courts, Delhi.

State vs. Shanti