Delhi District Court
State vs Ashok on 19 November, 2024
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IN THE COURT OF ASHISH KUMAR MEENA
MM-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.: 135/2023
PS: FATEHPUR BERI
U/S: 33 DELHI EXCISE ACT
CR. CASE NO. 6237/2023
STATE
VS.
ASHOK, S/o SH. DESRAJ
R/O H. NO. GA-23, SULTANPUR COLONY
NEW DELHI. ...... ACCUSED
1. Sr. No. of the case : 6237/2023
2. The date of offence : 26.03.2023
3. The name of the complainant : HC V. K. Singh
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 28.10.2024
6. The date of order : 19.11.2024
7. The final order : Acquitted
JUDGMENT
1. Briefly stated, accused Ashok ("Accused") is facing trial for the allegations that on 26.03.2023 at about 06:00 p.m., at Main Road, Near Sultanpur, New Delhi, within the jurisdiction of PS-Fatehpur Beri, you accused, was found in possession of a Digitally signed by ASHISH ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok KUMAR MEENA Date:
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plastic katta containing 90 half bottles labelled as 'FRESH MOTA ORANGE, FOR SALE IN HARYANA ONLY, 375 ML, without any licence or permit or pass, thereby accused has committed an offence punishable u/s 33 Delhi Excise Act.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 33 of the Delhi Excise Act and accordingly, the charge was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined three witnesses. PW-1 HC Virender (complainant) has deposed that on 26.03.2023. During patrolling duty, a secret informer met with him at about 06:00 pm and informed him that a person who is carrying illicit liquor in white plastic katta on his head is coming from the side of Jonapur towards Sultanpur. Thereafter, he alongwith secret informer present there and secret informer pointed out towards the accused when the accused came close to them. He set the secret informer free from the spot and he apprehended that person who was carrying white plastic katta on his head. He checked the same and found half bottles of illicit liquor in that katta. He inquired from him about the said illicit liquor. The accused told his name as Ashok, S/o Deshraj, R/o Sultanpur. Accused told him that he is bringing illicit liquor from Gurugram, Haryana to sell in Delhi. He gave information regarding the same to the Duty Officer, PS-Fatehpur Beri. Thereafter, HC Krishan Kumar came at the spot. He handed over the accused alongwith illicit liquor to HC Krishan Kumar. HC Digitally Krishan Kumar recorded his statement vide Ex.PW1/A. HC signed by ASHISH ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok KUMAR MEENA Date:
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Krishan Kumar asked passers by to join the investigation, but none of them joined by giving their valid reasons. Due to paucity of time, notice cannot be served to them. Thereafter, IO inquired from the accused. IO checked the said white plastic katta and took out all the bottles of the said katta and after counting the same, IO found total 90 half bottles of illicit liquor having label of "Mota Masaledar Desi Sharab, for sale in Haryana only 375 ML". IO took out one half bottle from the said recovered illicit liquor as a sample and rest 89 half bottles were kept in the same white plastic katta and its mouth was tied with a piece of white cloth and sealed with the seal of "KK". Mouth of sample bottle also seized with white cloth and sealed with the seal of "KK". IO had prepared form M-29 at the spot. After using the seal, it was handed over to him. Sample bottle was given numbered as Mark- S and the said katta was given number as Mark-S. IO took the sample bottle alongwith recovered illicit liquor into custody vide seizure memo Ex.PW1/B. Thereafter, IO prepared a Tehrir and handed it to him for registration of FIR. He went to PS and got the FIR registered. He came back to the spot alongwith original tehrir and copy of FIR and handed over the same to the IO/HC Krishan Kumar. IO prepared site plan at his instance vide Ex.PW1/C. IO recorded disclosure statement of accused vide memo Ex.PW1/D. IO had arrested the accused vide arrest memo Ex.PW1/E. IO conducted personal search of accused vide Ex.PW1/F. Thereafter, he alongwith IO took the accused and case property to PS. IO deposited the case property into PS. Thereafter, accused was sent for his medical examination and after medical examination, he was produced before the concerned court and from there accused was sent to judicial custody. IO Digitally recorded his statement u/s 161 Cr.P.C. During examination signed by ASHISH ASHISH KUMAR KUMAR MEENA FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok MEENA Date:
2024.11.19 16:09:53 +0530 Page 4 of 15 remaining case property vide Ex.P1 was produced alongwith two photographs of white katta (Ex.P2).
4. PW-2 HC Satish Kumar has deposed that on 17.05.2023 he joined the investigation of this case. As per direction of IO, he took out sample bottle to L-Block, Vikas Bhawan, ITO Excise Department vide RC No. 68/21/23 Ex.PW2/A. He got deposited sample bottle into excise laboratory and handed over the receiving of same to MHC(M). He ensured that till the time sample was in his possession, no tampering has been done with the sample. IO had recorded his statement u/s 161 Cr.P.C.
5. PW-3 HC Krishan Kumar (IO of this case) has deposed that on 26.03.2023, he was present at PS-Fatehpur Beri. He received DD No.69A and thereafter he reached near main road Sultanpur Estate, New Delhi. At there he met with HC Virender who had already apprehended a person alongwith illicit liquor. HC Virender handed over the accused alongwith illicit liquor to him. He recorded statement of HC Virender. He asked passers by/public persons to join the investigation, but none of them joined by giving their valid reasons. Due to paucity of time, notice cannot be served to them. Thereafter, he inquired from the accused who revealed his name as Ashok, S/o Deshraj, R/o GA- 23, Sultanpur Colony, New Delhi. He checked the said white plastic katta and took out all the bottles of the said katta and after counting the same, he found total 90 half bottles of illicit liquor having label of "Mota Masaledar Desi Sharab, for sale in Haryana only 375 ML". He took out one half bottle from the said recovered illicit liquor as a sample and rest 89 half bottles were kept in the same white plastic katta and its mouth was tied with a Digitally piece of white cloth and sealed with the seal of "KK". Mouth of signed by ASHISH ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok KUMAR MEENA Date:
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sample bottle also seized with white cloth and sealed with the seal of "KK". He prepared form M-29 at the spot. After using the seal, it was handed over to HC Virender. Sample bottle was given numbered as Mark-S1 and the said katta was given number as Mark-S. He took the sample bottle alongwith recovered illicit liquor into custody vide seizure memo. Thereafter, he prepared a rukka and handed it to HC Virender for registration of FIR vide Ex.PW3/A. HC Virender went to PS and got the FIR registered and then came back to the spot alongwith original tehrir and copy of FIR and handed over the same to the him. He prepared site plan at instance of HC Virender. Thereafter, he inquired from the accused and recorded disclosure statement of accused. He arrested the accused. He conducted personal search of accused. Thereafter, he alongwith HC Virender took the accused and case property to PS. He deposited the case property into malkhana PS. Thereafter, accused was sent for his medical examination and after medical examination, he was produced before the concerned court and from there he was sent to judicial custody. He recorded statement of witnesses u/s 161 Cr.P.C. Thereafter, during investigation he got deposited the sample bottle into excise control laboratory Vikas Bhawan through HC Satish and he came back to PS and gave him the receiving copy of the same. He recorded his statement u/s 161 Cr.P.C. He obtained excise sample result. As per result it was positive. He annexed the result alongwith charge-sheet. He completed the investigation, prepared the charge-sheet and submitted it before the concerned court.
6. It is pertinent to mention that the accused has also admitted the genuineness of FIR, Certificate u/s 65B IEA supporting the FIR, Chemical examination report without admitting the content Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok MEENA Date:
2024.11.19 16:10:09 +0530 Page 6 of 15 of the same. Prosecution evidence was thereafter closed.
7. On completion of prosecution evidence, statement of accused was recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which she stated that she is innocent and has been falsely implicated in this case and all the exhibits are false and manipulated. Further, the accused did not wish to lead defence evidence.
8. Final arguments heard. Case file perused.
9. Short point for determination before this court is as under:
''Whether on 26.03.2023 at about 06:00 p.m., at Main Road, Near Sultanpur, New Delhi, within the jurisdiction of PS-Fatehpur Beri, you accused, was found in possession of a plastic katta containing 90 half bottles labelled as 'FRESH MOTA ORANGE, FOR SALE IN HARYANA ONLY, 375ML, without any licence or permit or pass, thereby accused has committed an offence punishable u/s 33 Delhi Excise Act"
10. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
11. It is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter.
Digitally signed by ASHISHASHISH KUMAR MEENA FIR No: 135/2023 PS: Fatehpur Beri State Vs. AshokKUMAR Date: MEENA 2024.11.19 16:10:19 +0530 Page 7 of 15
Ld. Counsel submitted that the Prosecution has failed to prove recovery made against the accused beyond reasonable doubt. Ld. Counsel for the accused has pointed out the material contradiction made during the examination of prosecution witnesses. Furthermore, Ld. Counsel for the accused submitted that be accused is liable to the acquitted in the present case.
12. In the present case accused is charged under Section 33 of Delhi Excise Act. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:
Section 33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or 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 works any manufactory or warehouse;
(c) bottles any liquor for 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 toddy or tari;
(e) possesses any material or film either with or without the Government logo or logo of any Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok MEENA Date:
2024.11.19 16:10:28 +0530 Page 8 of 15 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 lath rupees.
13. It is also significant to note that Section 52 of Delhi Excise Act presumes that accused has committed the offence (u/s 33 of the act) for the possession of which accused is unable to account satisfactorily. However, this presumption can be rebutted if proved contrary. It is further to be noted that initial still lies with the prosecution to show that accused was found with illicit liquor without any licence. Section 52 of the Act lays down as follows:
Section 52. 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. Digitally signed by ASHISH ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok KUMAR MEENA Date:
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(2) XXXXXXX
14. In order to receive the benefit of Section 52 of the Act, the prosecution is duty bound to prove that the accused was found in the possession of illicit liquor. As per version of the prosecution, the same is proved by the recovery memo and testimony of the witnesses. However, the manner of conducting inquiry, seizure and search etc. on the spot at the time of detaining the accused and alleged recovery of liquor in this case, makes the prosecution version highly doubtful as there are various material contradictions can be seen in statement of prosecution witnesses.
15. It is the case of prosecution that the complainant/PW-1 HC Virender recovered illicit liquor from the possession of the accused. Thereafter, they informed PS for further proceedings.
On receiving information, IO/HC Krishan Kumar reached at the spot. It is to be noted that before registration of FIR, IO/HC Krishan Kumar took out one sample from case property and sealed the remaining case property with the seal of "KK". It is pertinent to mention that the IO has prepared the seizure memo before registration of FIR. However, this Court fails to understand as to why the case property was sealed before registration of FIR. It is further to be noted that Ex.PW1/B (seizure memo) mentions the particular of FIR No. 135/2023, PS- Fatehpur Beri, which is in contradiction to the statement of both the witnesses. At one side, IO and accompanied witness are deposing that the case property was seized before registration of FIR. Whereas, on other side, Ex.PW1/B specifically mentions the particulars of present FIR which indicates that the seizure memo was prepared before registration of FIR. The said contradiction is Digitally material and raised doubt over the recovery allegedly effected signed by ASHISH ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok KUMAR MEENA MEENA Date:
2024.11.19 16:10:42 +0530 Page 10 of 15 from the possession of the accused. It is further to be noted, interestingly, all the witnesses have stated that no photograph of the case property was taken at the time of recovery of case property. It is to be noted that the prosecution has placed photographs vide Ex.P2 alleging that the case property was again sealed in the katta recovered from the possession of the accused. However, the prosecution has failed to show who is the author of Ex.P2, as all the witnesses have deposed that they have not taken any photographs of the case property. Further, the prosecution has failed to explain as to why the collective photographs of the case property was not taken prior to sealing of the case property In view of this court, the said lapse and contradiction in investigation proves to be fatal to the case of prosecution.
16. Further, it is deposed by all the witnesses that that they tried to join independent witnesses in the investigation but none of the joined citing personal reasons. As per site plan, the place of incident appears to be busy area and the said incident is stated to have taken place at around 06:00 PM. Further, it is evident from the testimony of the witnesses that accused was apprehended alongwith the alleged illicit liquor at public place, but still no public independent person was cited as a witness in this case. Though witnesses have stated in his testimony that some public persons were requested to join, but none of them agreed and it is not clear whether took any effort to give notice to passerby to join them as witnesses but witness did not disclose the names of any such witnesses. IO has also failed to show any effort to include public witnesses in order to prove their case beyond reasonable doubt and inspire the confidence of this court.
Digitally
17. Regarding the importance of joining independent witness signed by ASHISH ASHISH KUMAR KUMAR MEENA FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok MEENA Date:
2024.11.19 16:10:50 +0530 Page 11 of 15 during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, 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 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".
18. Similarly, in 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 Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA Date:
FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok MEENA 2024.11.19 16:10:57 +0530 Page 12 of 15 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".
19. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some Digitally signed by ASHISH ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok KUMAR MEENA Date:
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independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
20. 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 substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above- mentioned facts create serious doubt on the case of the prosecution.
21. Further, as per evidence on record, the seal after use was not given to any independent public person. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. 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 Digitally signed ASHISH by ASHISH KUMAR FIR No: 135/2023 PS: Fatehpur Beri State Vs. AshokKUMAR MEENA Date:
MEENA 2024.11.19 16:11:13 +0530 Page 14 of 15 the samples being tampered with cannot be ruled out."
22. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore, the possibility of tampering 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 tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
23. Further, 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, all these departures or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
24. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been Digitally signed ASHISH by ASHISH KUMAR KUMAR MEENA FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok MEENA Date:
2024.11.19 16:11:24 +0530 Page 15 of 15 conducted on the spot at the time of alleged recovery of liquor, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
25. Hence, accused Sh. Ashok, S/o Sh. Deshraj stands acquitted of the offence punishable under section 33 of Delhi Excise Act, he has been charged with. Ordered accordingly.
ANNOUNCED IN THE OPEN COURT ON 19.11.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO FIFTEEN PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED.
ASHISH Digitally
by ASHISH
signed
KUMAR KUMAR MEENA
Date: 2024.11.19
MEENA 16:11:34 +0530
(ASHISH KUMAR MEENA)
JMFC-01/SAKET COURT(SOUTH)
NEW DELHI/19.11.2024
FIR No: 135/2023 PS: Fatehpur Beri State Vs. Ashok