Delhi District Court
State vs Vikash @ Matru Etc. on 6 June, 2019
FIR No. 288/2016
PS: I.P.Estate
U/s 33 /38/58 Delhi Excise Act
State Vs Vikash @ Matru etc.
IN THE COURT OF SH. VIPLAV DABAS MM03, CENTRAL
TIS HAZARI COURTS, DELHI
Case No. 12670/2017
FIR No. 288/2016
PS: I.P.Estate
U/s 33/38/58 Delhi Excise Act
State Vs Vikash @ Matru etc.
Date of Institution of case : 10.11.2017
Date of Judgment : 06.06.2019
JUDGMENT:
a) Date of offence : 06.04.2016 b) Offence complained of : U/s 33/38/58 Delhi Excise Act c) Name of Accused, his : 1) Vikash @ Matru parentage & residence S/o Sh. Ashok Kumar R/o D129, School Block, Nand Nagri, Delhi. 2) Pooja W/o Sh. Joginder R/o B5/307, Gali No.3, Nand Nagri, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No.1/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. BRIEF FACTS AND REASONS FOR DECISION:
1. In the present case, accused persons namely Vikash @ Matru and Pooja were put to the trial for the offence punishable U/Sec 33 /38/58 Delhi Excise Act on the allegations that on 06.04.2016 at about 02:45 a.m at Mahatama Gandhi Marg, Near I.P.Depot, Delhi within the jurisdiction of PS I.P.Estate accused Vikash @ Matru was found carrying 70 petties out of which 55 petties were containing 50 quarter bottles each of Desi Santra Sharab and 15 petties were containing 48 quarter bottles each of Impact Grain Whiskey on a Mahindra Champion bearing registration number DL 1LQ 8914 belonging to the coaccused Pooja without any permit or valid license in contravention of provisions of Delhi Excise Act and thus accused persons committed an offence punishable u/s 33/58 of Delhi Excise Act. After registration of FIR and the usual investigation, the charge sheet for the offence punishable U/Sec 33/58 Delhi Excise Act was prepared against the accused persons. The aforesaid charge sheet was filed before the court on 10.11.2017 whereupon the cognizance of the offence was taken against the accused persons. Thereafter, the provision of section 207 Cr. P.C. was complied with.
2. After hearing the arguments on charge, the accused persons namely Vikash @ Matru and Pooja were charged for the alleged commission of the offence punishable under Section 33 of Delhi Excise & under Section 58 read with Section 33 of Delhi Excise Act respectively to which the accused persons pleaded "Not Page No.2/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. Guilty" and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. During the course of the trial prosecution has examined two witnesses i.e. PW 1 Ct. Lokesh Kumar and PW2 SI Subhash Kumar to substantiate the accusation.
4. The case of the prosecution is that on 03.06.2016 complainant / PW1 Ct. Lokesh Kumar alongwith PW2 SI Subhash Kumar were on patrolling duty to check the vehicles and at about 2:30 a.m, they reached at I.P.Depot for checking of vehicles where they saw that one Mahindra Champion vehicle was coming from the side of Sarai Kale Khan and was going to ITO side. The driver of the said vehicle had stopped his vehicle before their picket and on suspicion they went there and inquired from the driver of the said vehicle. On checking, the said vehicle was found containing 70 petties of illicit liquor out of which 55 petties were containing 50 quarter bottles each of Desi Santra Sharab and 15 petties were containing 48 quarter bottles each of Impact Grain Whiskey. IO/ PW2 took out two quarter bottles from each petti as sample and marked as 1A 1B to 55A55B. The remaining quarter bottles were marked as Mark 1 to 55. IO/ PW2 took out two quarter bottles from each remaining petti as sample and marked them as Mark 56A56B to 70 A70B. The remaining quarter bottles were marked as Mark 56 to
70. All the samples were sealed with the seal of AK after preparing pullanda. The remaining petties were formed into 14 bundles (5 petties in each bundle). IO/ PW Page No.3/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. 2 seized the case property vide seizure memo Ex. PW2/A and Mahindra Champion vide seizure memo Ex.PW2/B. Form M29 was filled up by the IO. IO /PW2 prepared the rukka and handed it over to PW1 Ct. Lokesh for registration of the FIR. After registration of the case FIR, complainant / PW1 Ct. Lokesh came at the spot alongwith HC Yudhveer and handed over the copy of FIR and original tehreer to the HC Yudhveer. HC Yudhveer prepared the site plan Ex. PW1/A. Thereafter, HC Yudhveer arrested and personally searched the accused Vikash Matru vide memos Ex. PW1/B and Ex. PW1/C bearing his signature at point A. HC Yudhveer also recorded the disclosure statement of the accused Vikash @ Matru which is Ex. PW1/D. During examination in chief, MHC(M) produced the copy of letter bearing no. 10126/2018/4021 dated 20.09.2018 vide which the case property in the present case had been disposed off. The copy of the said letter is Ex. PX1.
5. In the present case, prosecution has produced and examined two witnesses who are material being the witness in whose presence the proceedings were conducted at the spot.
During cross examination conducted on behalf of accused persons, PW1 Ct. Lokesh deposed that he had got the departure entry lodged by the DD writer at the time of leaving the police station for patrolling, that he does not remember the said DD Number vide which he left the police station for patrolling, that he was on patrolling duty alongwith IO SI Subhash on the bike of police department, that the spot is a public place being the main road opposite I.P.Depot, that the public Page No.4/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. persons were passing by the spot at the time of the alleged incident, that no public persons joined in the investigation and that he or the IO did not ask any public persons to join the investigation. The witness denied the suggestion that he never visited the spot or that all the writing work was done while sitting at the PS and that nothing was recovered from the possession of the accused in the alleged vehicle or that the accused has been falsely implicated in this case by planting the case property upon him.
During cross examination conducted on behalf of accused Vikash @ Matru, PW2 SI Subhash Kumar deposed that he did not ask public persons to join the investigation as it was night time, that no public person was present near the spot, that some vehicles were passing through the spot, that he stopped some vehicles and tried to join the persons in the vehicles but they refused to join the investigation, that he does not remember how many vehicles were checked by him, that he does not remember which type of vehicles he stopped for checking, that the last vehicle he checked is the present vehicle involved in this case, that he had gone to I.P.Depot to call some persons to join the investigation but they also refused to join due to late night time,that he had not made any entry regarding the checking of the vehicles and that he does not remember the DD number by which he was on patrolling duty.
The witness denied the suggestion that he never visited the spot or that all the writing work was done while sitting at the police station, that nothing was recovered from the possession of the accused or that accused has been falsely implicated in the present case by planting the case property upon him.
Page No.5/14 FIR No. 288/2016PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. During cross examination conducted on behalf of accused Pooja, PW2 SI Subhash Kumar deposed that he had not asked accused Vikash @ Matru about the ownership of the vehicle.
6. On 31.05.2019, accused persons admitted the documents i.e the FIR Ex. A1, Excise Result Ex. A2, notice u/s 133 M.V.Act and R/C of the vehicle Ex. A
4. In view of the said admissions, prosecution witnesses qua aforesaid documents were dropped.
7. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and statement of the accused persons were recorded wherein all the incriminating circumstances appearing in evidence were put to the accused persons who stated that nothing was recovered from possession of accused Vikash @ Matru at the relevant time and they have been falsely implicated in the present case by the police officials by planting the case property. The accused persons chose not to lead defence evidence.
8. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused persons that they have been falsely implicated in the present case which is evident from the non joinder of the public witnesses, that nothing was recovered from his possession and that the alleged recovery has been planted upon the accused at the Page No.6/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. police station.
9. I have heard the Ld. APP for the state as well the defence counsel.
10. At the very outset, regarding the presumption against the accused under section 52 of Delhi Excise Act, it is pertinent to mention that if the accused is able to raise a probable defence which creates doubts about the existence or veracity of prosecution version, the prosecution can fail. In raising the probable defence, the accused can rely on the materials submitted by the complainant/ state and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." The fact, whether the accused has been able to raise a probable defence is being discussed in following paragraphs:
11. The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. Record shows that PW1 Ct. Lokesh Kumar deposed that the spot was a public place being the main road opposite I.P.Depot, that no public persons joined in the investigation and that he or the IO did not ask any public persons to join the investigation. Record further shows that PW2 SI Subhash Kumar deposed that he did not ask public persons to join the investigation as it was night time, that no public person was present near the spot, that some vehicles were passing through the spot and that he stopped Page No.7/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. some vehicles and tried to join the persons in the vehicles but they refused to join the investigation. It is thus evident from the testimony of PW1 Ct. Lokesh Kumar and PW2 SI Subhash Kumar and record that accused Vikash @ Matru was apprehended alongwith the alleged illicit liquor being transported in a Mahindra Champion belonging to accused Pooja at public place. It is further clear that PW1 and PW2 are contradicting regarding the presence of public persons which makes the prosecution version of presence of PW1 and PW2 at the spot together highly suspicious. It is further reflected that neither any explanation for nonjoinder of public persons in the investigation has been given by PW1 nor any reasonable justification for not serving any notice upon the vehicle users on refusal to join the investigation has been stated by the PW2. It shows that no bonafide efforts were made to persuade the public persons to join the investigation.
12. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws: In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under: "18. 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 Page No.8/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. 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 law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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".
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13. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused persons in the present case and that the recovery was planted upon the accused persons.
14. It is also pertinent to mention that prosecution witnesses have failed to prove any documentary evidence or the DD entries to show that they were on patrolling duty. Record shows that PW1 and PW2 deposed that they do not remember the DD entry vide which they left the police station for patrolling.
Regarding the value of making DD entry it is worth mentioning that as per chapter 22 rule 49 of the Punjab Police Rules it is necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under : " 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 personally by signature or seal.
Page No.10/14 FIR No. 288/2016PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. Note : The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 19872 (2) Crimes 29 the Hon'ble Delhi High Court "Wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the court 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 and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision appears to have not been complied with by prosecution. These omissions on the part of the prosecution create doubt on the version that the accused was apprehended with the alleged illicit liquor at the spot by the said PWs.
15. Furthermore, the testimony of PW1 and PW2, record and the perusal of rukka Ex.2/D shows that the seizure memo Ex. PW2/A and Ex. PW2/B and Form M29 Ex.PW2/C were prepared prior to the dispatch of the Rukka and registration of the FIR. However, perusal of the said documents clearly shows that the FIR Page No.11/14 FIR No. 288/2016 PS: I.P.Estate U/s 33 /38/58 Delhi Excise Act State Vs Vikash @ Matru etc. number and other particulars of the present case are mentioned on the said documents. No explanation has come from the prosecution to justify as to how the FIR number surfaced on those documents which were prepared prior to the registration of the case thereby substantiating the defence version that the alleged recovery was planted at the police station and nothing was recovered from the spot from the possession of the accused. This fact casts a doubt upon the testimony of PWs and entire prosecution version because if the said documents were prepared prior to the registration of the present case, then how the FIR number as well as other particulars of the present case surfaced on the said documents. At this stage, reference can also be made of a case titled as Pawan Kumar Vs Delhi Admn. 1987 CC Cases 585 Delhi wherein Hon'ble High Court of Delhi had held that the mention of FIR number on recovery memo etc which were prepared prior to lodging the FIR creates doubt and benefit should go to the accused.
16. Being guided by above said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of country made liquor being transported by accused Vikash @ Matru in Mahendra Champion of coaccused Pooja from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
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17. In the present facts and circumstances, it is pertinent to mention the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held: "...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
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18. In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused persons namely 1) Vikash @ Matru S/o Sh. Ashok Kumar and 2) Pooja, W/o Sh. Joginder are acquitted of the charge leveled against them. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
Fresh bail bond and surety bond furnished and accepted in compliance of Section 437 A Cr.P.C.
File be consigned to the Record Room after due compliance.
Digitally signedVIPLAV by VIPLAV DABAS DABAS Date: 2019.06.21 17:03:41 +0530 Announced in the Open Court (VIPLAV DABAS) today i.e on 06.06.2019 MM03/ CENTRAL:DELHI 06.06.2019 Page No.14/14