Delhi District Court
State vs Anita Sharma on 29 June, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT,
NEW DELHI.
FIR No.: 675/2020
PS: Mohan Garden
U/s: 33 Delhi Excise Act
Case no. 11757/2021
State
Vs.
Anita Sharma
W/o Sh. Arun Sharma
R/o 32/33, Block K-5 Extension,
Mohan Garden, Delhi. ..... Accused
S. No. of the case : 11757/2021
The date of offence : 22.09.2020
The name of the complainant : Ct. Manoj Yadav
The name of the accused : Anita Sharma
The offence complained : 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 29.06.2024
The date of order : 29.06.2024
The final order : Acquitted
Brief Facts
1. It is the case of the prosecution that on 22.09.2020 at about 7.45 pm HC Manok Yadav, while on patrolling duty, reached near Peepal Chowk in front of Canara Bank ATM, Mohan Garden, and saw one lady who was coming from the side of Canra Bank ATM, who had one plastic katta on her head. Upon suspicion, when he as ked her to stop, she started moving in opposite direction alongwith plastic katta and he stopped her at that point and upon asking her name came out to be Anita sharma and upon checking, he found illicit liquor i.e. 58 quarter bottles of Asli Santra Massaledar Desi Sharab. He informed in the PS. Thereafter, HC Jitender Kumar FIR No.: 675/2020 State versus Anita Sharma Page No. 1 of 15 came to the spot alongwith W/Ct. Geeta. Thereafter, an FIR bearing no. 675/2020 u/s 33 Delhi Excise Act was registered at PS Mohan Garden. Investigation of the case was handed over to Investigating Officer HC Jitender Kumar who filed the chargesheet.
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Anita. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against her, to which she had pleaded not guilty and claimed trial.
4. During the course of the trial the prosecution examined the following witnesses:
i. HC Manoj Yadav was examined as PW 1. He stated that on 22.09.2020, he was posted at PS Mohan Garden as Ct. He did Ravangi Entry vide DD no. 72A to go patrolling in the area. At about 07.45 P.M when he reached near Peepal Chowk in front of Canara Bank ATM, Mohan Garden, he saw one lady, was coming from the side of Canra Bank ATM, who had one plastic katta on her head. Upon suspicion, when he asked her to stop, she started moving in opposite direction alongwith plastic katta and he stopped her at that point and upon asking her name came out to be Anita sharma. (Accused FIR No.: 675/2020 State versus Anita Sharma Page No. 2 of 15 is present in the court and correctly identified by the witness) and upon checking, he found illicit liquor i.e. 58 quarter bottles of Asli Santra Massaledar Desi Sharab. He informed in the PS. Thereafter, HC Jitender Kumar came to the spot alongwith W/Ct. Geeta. He handed over abovesaid plastic katta full of illicit liquor to the IO/HC Jitender Kumar and accused to W/Ct.
Geeta. IO recorded his statement which is already Ex. PW1/1 (bearing his signature at point A) and prepared the rukka in his presence which is Ex. PW1/2. IO prepared the site plan at his instance, which is Ex. PW1/3 in his presence bearing his signatures at point A. IO seized the illicit liquor vide seizure memo, which is Ex. PW1/4 bearing his signature at point A. IO gave notice under Section 41 A Cr.P.C. to the accused, which is Ex.PW1/5. IO prepared pabandinama which is Ex.PW1/6. IO filled from M-29 on the spot in his presence, which is Ex.PW1/7. IO recorded his statement. There were total 58 quarter bottles. IO took out one quarter bottle of Asli Santra Masaledar Desi Sharab for sale in Haryana as sample and sealed it with the seal of VK and kept the remaining illicit liquor in plastic katta again and sealed the same with Seal of VK. He can identify the case property, if shown to him. (At this stage, MHC(M) has produced one sample bottle of Asli Santara Masaledar Desi Sharab which are is Ex. X1. Destruction order dt. 30.05.2022 of Commission FIR No.: 675/2020 State versus Anita Sharma Page No. 3 of 15 Excise of case property is Ex. X2.) ii. In his cross examination PW 1 stated that he was alone during the patrolling duty. He called the DO after he apprehended the accused Anita Sharma from his mobile phone at about 07.55 P.M. IO came after 15 minutes at the spot. He do not remember exactly at what time, he took the rukka to the PS. He denied the suggestion that he took the accused to the PS and the proceedings were carried on in the PS. They remained at the spot at about 1 hour but in between he went to PS for registration of FIR. He do not know on which vehicle IO came to the spot. He voluntarily stated that the spot is the crowded place and traffic jam is ordinary thing at that place. He denied the suggestion that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that he is deposing falsely.
iii. ASI Jitender Kumar was examined as PW 2. He stated that on 22.09.2020, he was posted at PS Mohan Garden as HC. On that day, on receiving DD No. 83A, the apprehension of accused along with illicit liquor, he along with W/Ct. Geeta reached at the spot i.e. Peepal Chowk, in front of Canara Bank ATM, Mohan Garden, where Ct. Manoj met him and handed over the accused along with recovered liquor to him. He requested some passersby to join the proceedings but none agreed and FIR No.: 675/2020 State versus Anita Sharma Page No. 4 of 15 left the place without disclosing their names and address. Thereafter, the said katta was checked it was found containing 58 qtr. Bottles of asli desi santra masaledar desi sharab. Thereafter, he took out one quarter bottle as sample and the rest of the case property sealed with the seal of VK. The sample bottle were also sealed with the seal of VK. Form M-29 was filled up already Ex. PW-1/7 bearing his name at point A. Seizure memo of case property was prepared vide memo already Ex. PW1/4 bears his signature at point X. Thereafter, he recorded statement of Ct. Manoj which is already Ex.PW1/1 bears his attesting signature at point X and prepared a rukka already Ex.PW1/2 bearing his signature at point X and handed over the same to Ct. Manoj for the registration of the case. He went to PS and after getting the case registered returned to the spot and handed over the copy of FIR and original rukka to him. He prepared the site plan already Ex.PW1/3 bearing his signature at point X. Accused was allowed to leave on furnishing the undertaking as per the provisions of Section 41 Cr.P.C. already Ex. PW-1/5 bearing his signature at point X. Thereafter, they left the spot case property and samples were deposited in the malkhana. He recorded the statement of witnesses. (Accused is present in the court today correctly identified by the witness.) He can identify the case property if shown to him. (At this stage MHC(M) FIR No.: 675/2020 State versus Anita Sharma Page No. 5 of 15 produced one quarter bottle of illicit liquor i.e. asli santra masaledar desi sharab sealed with the seal of NS. Same is shown to the witness who correctly identify the same recovered from the possession of the accused. The case property collectively already Ex. X1.) Remaining case property was destroyed vide order of this Court dated 30.05.2022. Same is already on record. The same is already Ex.X2.
iv. In his cross examination PW 2 stated that he came at the spot at about 08:30 PM and left the spot at about 11:30 P M. Ct. Manoj went to PS for registration of FIR at about 09:50 PM and came back at the spot at about 10:40 PM. There were houses and shops near the spot. No notice was served to any public person. No seal handing over memo was prepared in his presence. Case property was taken to PS on his bike. He denied the suggestion that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that he is deposing falsely.
5. Statement of accused under Section 294 CRPC was recorded and she admitted FIR No 675/2020 PS Mohan Garden Ex P1, Entry in register no 19 at RC No 186/21/20 as Mark X, Excise Lab report Ex P2 and Statement of Ct Moti Lal Ex Y1. Thus, witness at serial No 2, 4, and 5 were dropped from the list of witness. Further, on the submission of the Ld APP on the ground that witness at serial FIR No.: 675/2020 State versus Anita Sharma Page No. 6 of 15 no 3 would depose same facts as deposed by PW 2, the witness at serial no 3 was also dropped from the list of witness.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w Section 281 CrPC was recorded on 03.06.2024 wherein all the incriminating evidence appearing against the accused was put to her, which she had denied to be cor- rect and submitted that she was not found in possession of illicit liquor. That she was falsely implicated in this present case. That she is innocent and all the witnesses deposing against her are inter- ested witnesses. The accused chose not to lead any evidence in her defence.
7. It is argued by Ld. APP for the State that it is clear from the state-
ment of the complainant and other witnesses as well as the docu- ments appearing on record that the accused was in possession of il- licit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and she be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, she be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
FIR No.: 675/2020 State versus Anita Sharma Page No. 7 of 15 Findings of the Court
10. Before embarking on the analysis and appreciation of the state- ments and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the pros- ecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed. I. Non-joining of Public Witnesses
11. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investiga- tion, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW 1 and PW 2 reveals that they have categorically stated that there were resi- dential houses and public persons were passing by. They had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt FIR No.: 675/2020 State versus Anita Sharma Page No. 8 of 15 over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
13. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC On- Line Del 469, 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 (Emphasis supplied).
14. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, 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 too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
FIR No.: 675/2020 State versus Anita Sharma Page No. 9 of 15 II. No seal Handing over memo.
15. PW 2/IO in his cross examination stated that no seal handing over memo was prepared. Thus, in the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same.
16. As per evidence available on record, the seal after use was not given to any independent public person. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. ...... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
III. Discrepancy in the case qua Seizure Memo.
17. There exists yet another discrepancy in the case of the prosecution.
PW 2/IO in his examination categorically stated that he prepared the seizure memo and Form M 29 and thereafter he recorded the statement of PW 1 and prepared the rukka and after the preparation of rukka he got the FIR registered. The same has been stated by PW 1 in his examination. Thus, it is clear from the testimony of FIR No.: 675/2020 State versus Anita Sharma Page No. 10 of 15 PW 1 and PW 2 that the seizure memo as well as Form M 29 was prepared before the tehrir/original rukka was handed over by PW2 IO to PW1 for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo, however, surprisingly it bears the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo was prepared, how the FIR number came to be noted in the seizure memo since the number of the FIR could have come to knowledge of PW 2 only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo, which came into existence before registration of the FIR.
18. In this context, Hon'ble High Court of Delhi in Pawan Kumar v.
The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"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. 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. FIR No.: 675/2020 State versus Anita Sharma Page No. 11 of 15 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."
19. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"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 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 FIR No.: 675/2020 State versus Anita Sharma Page No. 12 of 15 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."
20. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
IV. No departure or the arrival entry of PW 1.
21. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by a police official PW 1, who was on patrolling duty at the relevant time and place, as per the prosecution story. PW 1 in his examination in chief stated that he did the ravanagi entry vide FIR No.: 675/2020 State versus Anita Sharma Page No. 13 of 15 DD No 72A to go to the patrolling area. However, no such entry was ever brought on record by the prosecution. No such document was placed on record by the prosecution during the course of trial which could even remotely suggest that any such ravanagi entry was ever made by PW 1.
22. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. 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 personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version FIR No.: 675/2020 State versus Anita Sharma Page No. 14 of 15 and attributes oblique motive on the part of the prosecution."
23. Thus, in light of the above discussions which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. The accused Anita Sharma w/o Sh. Arun Sharma is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
Digitally
signed by
HARSHAL
HARSHAL NEGI
Announced in the open court on 29.06.2024.NEGI Date:
2024.06.29
20:23:06
+0530
(Harshal Negi)
MM-02/Dwarka Court,
New Delhi, 29.06.2024
It is certified that the present judgment runs into 15 pages and each page bears my signature.HARSHAL Digitally signed by HARSHAL NEGI NEGI Date: 2024.06.29 20:23:11 +0530 (Harshal Negi) MM-02/DwarkaCourt, New Delhi, 29.06.2024 FIR No.: 675/2020 State versus Anita Sharma Page No. 15 of 15