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[Cites 10, Cited by 0]

Delhi District Court

State vs Virander on 17 February, 2023

     IN THE COURT OF SH VAIBHAV CHAURASIA:
METROPOLITAN MAGISTRATE-04: NORTH­WEST DISTRICT:
       ROHINI DISTRICT COURTS: NEW DELHI

FIR No. 23/2020
PS Budh Vihar
State Vs Virander

Date of Institution: 18.12.2020
Date of Judgment: 17.02.2023

                              JUDGMENT

(a) Serial Number of the case : 5359/2020

(b) Date of commission of offence : 17.01.2020

(c) Name of the complainant : Ct. Gyan Singh

(d) Name of Accused, his : Virander S/o Sh. 

         parentage & residence             Chaman Lal
                                           R/o A­317, Vijay Vihar
                                           Phase­II, Delhi­85.

(e)      Offence complained of           : Under Section 33/38
                                           Delhi Excise Act
(f)      Plea of Accused                 : Pleaded not guilty
(g)      Final order                     : Acquittal

BRIEF STATEMENT OF THE REASONS FOR THE DECISION

1) The accused Virander Singh has been sent to face trial for the offence under Section 33/38 of the Delhi Excise Act, 2009 upon the allegations that on 17.01.2020 at about 07:50 PM, near prince School ke Barabar wali Gali, Shyam Colony, Budh Vihar Phase­II, Delhi' he was found in possession of 100 quarter bottles of illicit liquor with label 'Asli Santra Masaledar Desi Sharab, for Sale in Haryana only', without any permit or valid license.

FIR No. 23/2020

PS Budh Vihar State Vs. Virender Page No. 1 of 14

2) After completion of investigation, chargesheet was filed in the Court, cognizance of the offence was taken and accused was summoned. After he entered appearance, copy of the chargesheet alongwith the documents was supplied to the accused in compliance of Section 207 of the Code of Criminal Procedure.

3) After consideration of arguments on charge, charge was framed against the accused Virander for commission of offence under Section 33/38 Delhi Excise Act to which he pleaded not guilty and claimed trial.

4) To prove its case, the prosecution examined 05 witnesses.

5) PW­1 PW­1 Ct. Gyan Singh deposed that on 17.01.2020, he was posted at PS Budh Vihar as constable. On that day, he was on emergency duty in the area of Budh Vihar Phase­II and while patrolling at about 7.50 pm, when he reached in the street near Prince School, Shyam Colony, Budh Vihar, Delhi, he noticed that one person was carrying some goods in a plastic katta on his left shoulder. On seeing him in uniform, you took U­turn and started walking fastly. He chased you and stopped you and inquired about the said katta, however, you could not give any satisfactory answer. Thereafter, he checked the said katta which was found containing two cartons containing quarter bottles of illicit liquor. Thereafter, he gave the said information to the PS and after some time, IO HC FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 2 of 14 Masum came to the spot and he handed over your custody alongwith the case property to the IO. Thereafter, IO checked the said katta containing two cartons each of which was found containing 50 quarter bottles of illicit liquor with label "Asli Santra Masaledar Desi Sharab, for sale in Haryana only". Thereafter, IO separated one quarter bottle as sample from each carton and put back the remaining quarter bottles in respective cartons and thereafter, put the cartons in the said katta. Thereafter, IO sealed the said katta and samples with the seal of MA. IO also filled Form­M29. IO seized the case property already Mark­X now Ex.PW1/B bearing his signature at point A. Thereafter, IO prepared the tehrir and handed over the same to him for registration of FIR, and accordingly, he went to the PS and after getting the FIR registered, he returned back to the spot and handed over the copy of FIR and original Tehrir to the IO. Thereafter, IO arrested the accused and conducted his personal search vide memos now Ex.PW1/C and Ex.PW1/D respectively both bearing his signatures at point A. IO also prepared the site plan at his instance which is now Ex.PW1/E bearing his signature at point A. IO also recorded the disclosure statement of the accused which is now Ex.PW1/F bearing his signature at point A. Thereafter, the case property was taken to the PS and deposited in the malkhana. Accused was put in the lockup after his medical examination in the hospital. Accused was present in the Court on that day and correctly identified by the witness. He can identify the case FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 3 of 14 property, if shown to him. At this stage, MHC(M) submitted that the case property of the present case has already been destroyed vide order no.

Con.21111/2020/7740 dated 29.01.2021. Further MHC(M) produced one quarter bottle of illicit liquor with label "Asli Santra Masaledar Desi Sharab, for sale in Haryana only" submitting that the said quarter bottle was preserved at the time of destruction of the case property of the present case. Said quarter bottle was shown to the witness, who correctly identified the same as recovered from the possession of the accused and the same is now Ex.P­1. Further MHC(M) produced three photographs submitting that the said photographs were clicked at the time of destruction of the case property and the same are now Ex.P­2 (colly). Copy of the said order is now Mark­ 1A. Copy of order no. Con/Misc/2021/1095­96 dated 23.07.2021 is now Ex.P­3 (OSR) (colly, 02 pages). Photocopy of report regarding destruction of case property is now Mark­1B (colly, 02 pages).

6) PW­2: HC Masum deposed that on 17.01.2020, he was posted at PS Budh Vihar as Head Constable. On that day, he receive one DD entry no. 43­B regarding recovery of illicit liquor. True copy of the said DD entry no. 43­B is now Mark­2A. Thereafter, he went to the spot i.e. In the Street, Near Prince School, Shyam Colony, Budh Vihar Phase­II where Ct. Gyan Singh found present who produced one person before him alongwith the case property recovered from the possession of the accused.

FIR No. 23/2020

PS Budh Vihar State Vs. Virender Page No. 4 of 14 Thereafter, he checked the said case property which was in a plastic katta in which two cartons were found in each of which 50 quarter bottles of illicit liquor were found with label "Asli Santra Masaledar Desi Shara, for sale in Haryana only". Thereafter, he separated one quarter bottle from each carton as sample and put back the remaining quarter bottles in the respective cartons which were put in the said katta. Thereafter, he sealed the said katta and samples with the seal of 'MA'. He filled Form­ M29 which is now Ex.PW2/A bearing his signature at point A. Thereafter, he handed over the seal to Ct. Gyan Singh. He seized the case property vide seizure memo already Ex.PW1/B bearing his signature at point B. he recorded the statement of Ct. Gyan Singh which is already Ex.PW1/A which was attested by him at point B. Thereafter, he prepared the Tehrir which is now Ex.PW2/B bearing his signature at point A and handed over the same to Ct. Gyan Singh for getting the FIR registered, who accordingly, went to the PS and after getting the FIR registered, returned back to the spot and handed over the copy of FIR and original tehrir to him. He recorded the disclosure statement of the accused which is already ExPW1/F bearing his signature at point B. Thereafter, he arrested the accused and conducted his personal search vide memos already Ex.PW1/C and Ex.PW1/D respectively, both bearing his signatures at point B. he prepared the site plan already already Ex.PW1/E bearing his signature at point B, at the instance of Ct. Gyan Singh. Thereafter, the case property and the FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 5 of 14 accused were taken to PS where the case property was deposited in malkhana and accused was put in the lockup after his medical examination in the hospital. On 18.02.2020, Ct. Sunil collected the sample of the present case from Malkhana for depositing the same in Excise Laboratory. He recorded the statements of witnesses and prepared the challan and filed the same before the Court. Accused was present in the Court on that day and correctly identified by the witness. He can identify the case property, if shown to him. At this stage, MHC(M) submitted that the case property of the present case has already been destroyed vide order no.

Con.21111/2020/7740 dated 29.01.2021. Further MHC(M) produced one quarter bottle of illicit liquor with label "Asli Santra Masaledar Desi Sharab, for sale in Haryana only" submitting that the said quarter bottle was preserved at the time of destruction of the case property of the present case. Said quarter bottle was shown to the witness, who correctly identified the same as recovered from the possession of the accused and the same is already Ex.P­1. Three photographs which were clicked at the time of destruction of the case property are already Ex.P­2 (colly). Copy of the said order is already Mark­1A. Copy of order no. Con/Misc/2021/1095­96 dated 23.07.2021 is already Ex.P­3 (OSR) (colly, 02 pages). Photocopy of report regarding destruction of case property is already Mark­1B (colly, 02 pages).

FIR No. 23/2020

PS Budh Vihar State Vs. Virender Page No. 6 of 14

7) PW­3: SI Raj Kumar deposed that on 17.01.2020, he was posted at PS Budh Vihar as Duty Officer and his duty timings were from 8.00 pm to 8.00 am next morning. Vide DD entry no. 43­B he received a telephonic information that the accused had been caught with illicit liquor Near Prince School, Budh Vihar, Delhi. He marked the same to HC Masum. On that day he has brought the Rojnamcha Register of the original record of the DD entry no. 43­B dated 17.01.2020 which was already placed on record in the judicial file, and already marked as Mark­2A bearing his signature at point A. The Rojnamcha Register has been shown in the Court.

8) PW­4: SI Rohtash Singh deposed that on 17.01.2020, he was posted at PS Budh Vihar as ASI and was working as Duty Officer from 8.00 am to 8.00 pm. He recorded the departure entry of Ct. Gyan Singh vide DD entry no. 38­B. On that day, he has brought the Rojnamcha Register showing the original record of departure entry vide DD entry no. 38­B of patrolling duty. The same has already been placed in the judicial record and exhibited as Ex.PW4/A bearing his signature at point A. The Rojnamcha Register had been shown in the Court. The time mentioned in the Rojnamcha Register at DD entry no. 38­B is 5.30 pm, in the evening.

9) PW­5: HC Sunil deposed that on 18.02.2020 he was posted at PS Budh Vihar as Constable. Vide FIR No. 23/2020, u/s 33 Excise Act, he took the two samples of FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 7 of 14 illicit liquor sealed with the seal of 'MA' vide Road Certificate bearing no. 27/21/2020 and deposited the same in the Excise Department, L­Block, ITO, Delhi and handed over the copy of the road certificate on which the receiving from the Excise Department was taken to HC Masum. At this stage, MHC(M) produced one sample bottle in unsealed condition wrapped in a white transparent polythene. He cannot identify the produced sample bottle of the illicit liquor, as he did not remember the description of the sample.

10) During the course of trial, the accused did not dispute the genuineness of report from excise department, upon which the relevant witnesses were dropped from the list of witnesses and the prosecution evidence was closed on request of the Ld APP for the State.

11) The statement of accused was then recorded under Section 281 read with Section 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused who maintained his innocence stating that he has been falsely implicated by the police officials. His mother was called to the police station and since his mother was aged, therefore he was implicated in the present case.

12) During the course of final arguments, it has been argued by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 8 of 14 relevant section are complete and in view of the presumption under Section 52 of the Delhi Excise Act the accused be convicted. On the other hand, Ld Counsel for the accused has argued that the accused has been falsely implicated in the present case, that there is no public witness of the incident and prosecution miserably failed to prove its case against the accused beyond reasonable doubts.

13) Final arguments as advanced by the Ld APP for the State and by Ld. Counsel for the accused have been carefully considered along with the evidence on record.

14) It is a settled proposition of law that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.

15) The prosecution has relied heavily upon the presumption under Section 52 of the Delhi Excise Act, 2009 to contend that in the present case, the burden was upon the accused to prove that he had not committed the offence under Section 33 of the Act and since the accused had failed to discharge the onus cast upon him, the accused should be FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 9 of 14 found guilty in the presence case. However, perusal of the Section 52 of the Delhi Excise Act reveals that the presumption under the Section can be raised only after the prosecution has discharged its initial onus as to the accused having been found in possession of illicit liquor.

16) For the sake of convenience, Section 52 of the Act is reproduced hereinunder:

"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. (emphasis supplied)".

17) Hence, to avail the benefit of the presumption, it was still for the prosecution to prove that the illicit liqour was infact recovered from the possession of the accused and it was also for the prosecution to prove that the case property produced in the Court was the same as was recovered from the possession of the accused and that the same was not tampered during the interim period. It is also pertinent to note here that the prosecution has neither cited nor examined any public witness in this case even though in the testimonies of PW­2 HC Masum has testified that public persons were passing through the spot and he even requested the public person to join however no one joined. Hence, the availability of public FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 10 of 14 persons at the spot at the time of the recovery as well as seizure stands proved.

18) Despite the same, no public person has been joined either at the time of the recovery nor at the time of the seizure of the case property. No explanation has been furnished by the PW­2 HC Masum as to why the public persons were not joined in the investigation by him at the time of recovery. However, there is no further evidence on record as to whether any further action was taken against such persons for not joining the investigation. Even PW­1 Ct. Gyan Singh stated that few passerby were there on the road however even IO tried but only to the refusal.

19) This omission to join the public person is significant as it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer investigating a crime is entitled to ask anybody to join the investigation and he is also fully empowered to initiate action against public persons refusing under the law. The failure on the part of the investigating officer to initiate any such action against any public person is suggestive of the fact that the explanation for non­joining the witnesses from the public is merely after thought and is not worthy of credence. (Ref: Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, decided by Hon'ble High Court of Punjab & Haryana).

FIR No. 23/2020

PS Budh Vihar State Vs. Virender Page No. 11 of 14

20) It is also duly noted here that while not in every case the testimony of police officials are to be looked upon with suspicion and treated as unworthy of reliance, but the failure of the investigating agency to join witnesses from the public especially when they are available or their presence can reasonably be secured with minimum efforts casts a doubt as to the authenticity of the version being put forth by the investigating agency. (Ref: Nanak Chand v The State of Delhi, 1991 JCC 1 decided by the Hon'ble Delhi High Court).

21) Hence, in these circumstances, as the investigating officer failed to join any independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavourable to the case of the investigating agency and the prosecution has thus failed to prove the recovery of the liquor from the accused beyond reasonable doubt.

22) It is also duly noted from the evidence on record that FIR number is being reflected on the form M­29 i.e. Ex.PW2/A despite it being the consistent case of the prosecution in the testimony of all its witnesses that it was after IO had filled form M­29 and seized the case property that the IO had prepared the rukka and got the FIR registered. The testimony of these prosecution witnesses thus implies that the case property had been seized and FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 12 of 14 Form M­29 had been prepared even prior to the FIR being registered yet the FIR number is reflected in the seizure memo. No explanation has been put forth by the prosecution to explain how the FIR number came to be mentioned on the document purportedly prepared before even the sending of the rukka which also raises a doubt as to the manipulation and / or insertions in the documents prepared by the investigating agency during investigation and casts a shadow of doubt on the very factum of the recovery from the accused.

Decision

23) In view of the above discussion, the prosecution case cannot be said to be free from reasonable doubt and the accused is entitled to be given the benefit of the doubt. Accordingly, the accused Sh. Virander S/o Sh. Chaman Lal is acquitted of the offence under Section 33/38 Delhi Excise Act, 2009 in FIR No. 23/2020 PS Budh Vihar.

24) The accused is directed to furnish fresh personal bond in a sum of Rs. 20,000/­ with one surety in like amount in compliance of provisions of Section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.

25) Case property be confiscated to the State and disposed off as per law if not already done.

FIR No. 23/2020

PS Budh Vihar State Vs. Virender Page No. 13 of 14

26) File be consigned to the Record Room after necessary compliance.

Announced in the Open Court on 17.02.2023 (VAIBHAV CHAURASIA) Metropolitan Magistrate­04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.

(VAIBHAV CHAURASIA) Metropolitan Magistrate­04/ North West District Rohini District Court/New Delhi FIR No. 23/2020 PS Budh Vihar State Vs. Virender Page No. 14 of 14