Delhi District Court
State vs Israt on 10 May, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
STATE Vs. ISRAT
FIR No. : 168/2013, U/s 33 Delhi Excise Act
PS : New Usmanpur
1.FIR No. 168/2013
2.Unique Case no. 463298/2015
3.Title State Vs. Israt
3(A).Name of complainant HC Shripal Sharma
3(B).Name of accused Israt S/o Late Yunus, R/o D-256,
Janta Colony, Welcome, Delhi
4. Representation on behalf of Ms. Amandeep Kaur, Ld. APP
State
4(A).Date of institution of challan 02.09.2013
5.Date of Reserving judgment 18.03.2024
6.Date of pronouncement 10.05.2024
7.Date of commission of offence 29.05.2013
8.Offence complained of U/s 33 Delhi Excise Act
9.Offence charged with U/s 33 Delhi Excise Act, S.174A
IPC
10.Plea of the accused Pleaded not guilty
11.Final order Acquitted for section 33
Delhi Excise Act and
convicted for section 174A
IPC
State vs. Israt FIR No.168/13 PS New Usmanpur Page 1 of 21
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant HC Shripal wherein he has stated that on 29.05.2013 he was alongwith Ct. Ram Prasad near khade wali masjid and met a secret informer who informed that one person aged 20-22 years will be coming with illicit liquor from Haryana border and will go towards Balu ki tubewell at about 07:00 pm and if raided he can be apprehended. 3-4 public persons were asked to join the investigation but they refused and left the place without disclosing their names and addresses. A raiding party was constituted by him alongwith Ct. Ram alongwith the secret informer. At about 07:00 pm one person was coming carrying plastic sack on his right shoulder and at the pointing out of the secret informer he apprehended that person with the help of Ct. Ram Prasad. He disclosed his name as Israt. On checking the plastic katta was found containing 100 quarter bottles of Havaldar Whiskey for sale in Chandigarh only. On the said bottles "180 ml blended and bottled by Ideal Distilleries (Pvt.) Ltd. Chandigarh was engraved. The accused was found carrying illicit liquor without any permit or licence of National Capital Territory of Delhi.
2. On the basis of the complaint, FIR no.168/2013, U/s 33 Delhi Excise Act was registered. After completion of investigation, chargesheet was filed U/s 33 Delhi Excise Act.
3. On 02.09.2013, cognizance was taken and accused was summoned. Thereafter, charge for the offence punishable u/s 33 Delhi Excise Act was framed against the accused Israt on State vs. Israt FIR No.168/13 PS New Usmanpur Page 2 of 21 06.11.2013 to which he pleaded not guilty and had claimed trial. During trial, the accused stopped appearing and declared a proclaimed person by this Court on 17.02.2023. He was later apprehended in kalandara under section 41.1(C) Cr. PC bearing DD No.64 dated 05.06.2023, PS New Usmanpur. Subsequently, the accused was charged for having committed the offence under section 174A IPC.
4. Prosecution has examined a total of 05 witnesses. Their testimonies in brief are as follows:
(i) PW1 Ct. Ram Prasad has deposed that on 29.05.2013 he joined the investigation of present case with HC Shripal Sharma.
At about 06:30 pm when they were present near khade wali masjid. They met a secret informer who informed that one person aged 20-22 years is coming alongwith illicit liquor from Haryana border and will go towards Balu ki tubewell at about 07:00 pm and if raided he can be apprehended. 3-4 public persons were asked to join the investigation but all refused and left the place without disclosing their names and addresses. A raiding party was constituted. Comprising himself, HC Shripal and the secret informer. They went to Balu ki tubwell and at about 07:00 pm one person came carrying a plastic sack on his right shoulder and at the pointing out of the secret informer HC Shripal apprehended him. He disclosed his name as Israt. On checking the plastic katta it was found containing 100 quarter bottles of Havaldar Whiskey for sale in Chandigarh only. On the said bottles "180 ml blended and bottled by Ideal Distilleries (Pvt.) Ltd. Chandigarh" was engraved. One quarter bottle was taken as sample by IO/HC Shripal and remaining 99 quarter bottles were State vs. Israt FIR No.168/13 PS New Usmanpur Page 3 of 21 kept in the same katta and sealed with the seal of SPS. Form M29 was filled at the spot. Seal was handed over to him after its use. IO prepared tehrir and handed over the same to him for registration of FIR. He came back to the spot after registration of FIR alongwith HC Jaiveer to whom further investigation of the case was handed over. He handed over the copy of FIR and original tehrir to IO/HC Jaiveer. HC Jaiveer prepared the site plan at the instance of HC Shripal. Accused was arrested and personally searched. Case property was deposited in maalkhana. The witness correctly identified the case property produced by MHC(M) and accused in the Court. The witness was not cross examined by the accused despite being given an opportunity.
(ii) PW2 HC Shripal Sharma is the complainant in the present matter. On 29.05.2013 at about 06:30 pm he alongwith Ct. Ram Prasad was present at khade wali masjid and met a secret informer who informed that a person aged 20-22 years will be coming alongwith illicit liquor from Haryana border and will go towards Balu ki tubewell at about 07:00 pm and if raided he could be apprehended. 3-4 public persons were asked to join the investigation but all refused and left without disclosing their names and addresses. A raiding party comprising of himself, Ct. Ram Prasad and secret informer was formed. They went to Balu ki tubewell at about 07:00 pm. One person came carrying plastic sack on his right shoulder and on the pointing of the secret informer he was apprehended with the help of Ct. Ram Prasad. He disclosed his name as Israt. On checking the plastic katta it was found containing 100 quarter bottles of Havaldar whiskey for sale in Chandigrah only. On the said bottles "180 ml blended and bottled by Ideal Distilleries (Pvt.) Ltd. Chandigarh" was State vs. Israt FIR No.168/13 PS New Usmanpur Page 4 of 21 engraved. He took out one quarter bottle as sample and sealed the remaining 99 bottles with the seal of SPS. Seal was handed over to Ct. Ram Prasad. Form M29 was filled at the spot. He prepared the tehrir and handed over the same to Ct. Ram Prasad for the registration of FIR. He came back at the spot after registration of FIR alongwith HC Jaiveer to whom further investigation of the case was handed over. He handed over the accused and the case property in sealed condition to IO/HC Jaiveer. HC Jaiveer prepared site plan at his instance. The witness correctly identified the case property produced by MHC(M) and accused in the Court. The witness was not cross examined by the accused despite being given an opportunity.
(iii) PW3 HC Tarsem Lal was handed over the sample of the case property on 04.06.2013 in a sealed condition with the seal of SPS by maalkhana Incharge for depositing the same excise lab ITO. He deposited the sample of the present case at the excise lab. As long as the samples remained with him they were not tampered with. The witness was not cross examined by the accused despite being given an opportunity.
(iv) PW4 HC Jaiveer Singh is the second IO in the present case. On 29.05.2013 he was handed over the investigation of the present case by Duty Officer at the instruction of SHO. Ct. Ram Prasad handed over copy of FIR and original tehrir at the PS. He went to the spot alongwith Ct. Ram Prasad and met HC Shripal who handed over the accused alongwith the case property in a sealed condition. He prepared site plan at the instance of IO/HC Shripal who thereafter, left the spot. He arrested the accused and conducted his personal search. He completed the investigation, prepared the challan and filed the charesheet before the Court.
State vs. Israt FIR No.168/13 PS New Usmanpur Page 5 of 21The witness was not cross examined by the accused despite being given an opportunity.
(v) PW5 HC Yashbir Singh was the Duty Officer on 29.05.2013 and received rukka through Ct. Ram Prasad at about 09:05 pm and on the basis of same he registered the present FIR. He made an endorsement on the rukka. The witness was not cross examined by the accused despite being given an opportunity.
5. PE was closed on 17.02.2023 and on 20.11.2023 statement of the accused u/s 313 Cr.P.C read with Section 281 Cr.P.C wherein he denied the allegations in toto. He stated that he does not wish to lead DE and has been falsely implicated in the present case.
6. Final arguments were addressed by Ld APP for the state and by Ld. LAC for the accused.
7. I have heard the submissions and perused the material on record. However, before proceeding to the merits of the case, I wish to reiterate that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts. An accused is presumed to be innocent, until proven guilty. It is for the prosecution to travel the entire distance from the accused "may have" to accused "must have" committed the offence. With respect to offences pertaining to recovery of contraband items from the possession of accused, I find it pertinent to refer to the importance of joining a public witness to the investigation. If a public witness is not available, then the prosecution must show that sincere effort was made to ensure the presence of public State vs. Israt FIR No.168/13 PS New Usmanpur Page 6 of 21 witness to join the raiding party. Here I would like to refer to the observations of the Hon'ble High Court of Delhi in Anoop Joshi Vs. State, 1992 (2) C.C. Cases 314 (HC), "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."
8. Additionally, Hon'ble High Court of Delhi in Pawan Kumar vs. Delhi Administration 1987 SCC OnLine Del 290 observed "....Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O.
should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused...."
9. The said position also find support from the observations of the Hon'ble Apex Court in Sahib Singh Vs State of Punjab State vs. Israt FIR No.168/13 PS New Usmanpur Page 7 of 21 wherein it was held that:
"Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -- as in the present case -- that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility."
10. Now proceeding upon the basis of aforesaid principles of law, I shall render my finding against the accused qua the offence. Onus is on the prosecution to prove the recovery of illicit liquor from the accused.
11. The present case was registered on the basis of complaint by HC Shripal that on 29.05.2013 at about 07:00 pm when he was with Ct. Ram Prasad, they met one secret informer who informed that one person aged 20-22 years would becoming from Haryana border and will go Balu ki tubewell at about 07:00 pm with illicit liquor and if raided he could be apprehended. They formed a raiding party and on the pointing out the secret informer accused Israt was apprehended alongwith 100 quarter bottles of Havaldar whiskey for sale in Chandigarh only. Hence, PW1 and PW2 are the star witnesses of the prosecution and their testimony require careful scrutiny. In their testimony, neither PW1 and nor State vs. Israt FIR No.168/13 PS New Usmanpur Page 8 of 21 PW have mentioned any DD vide they were present near khade wali masjid at about 07:00 pm on 29.05.2013. Nothing has been mentioned as to why no public persons were made to join the investigation. Nothing has been reflected from the deposition that even an attempt was made to include public persons in the investigation.
12. Section 52 of the Delhi Excise Act reads as under:
"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.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
13. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they State vs. Israt FIR No.168/13 PS New Usmanpur Page 9 of 21 are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. There is no independent public witness of the recovery and the explanation offered by the prosecution for the absence of public witness does not seem plausible. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person. No notice in writing was given to them to join the investigation. No action was taken qua the persons who refused to disclose their names or addresses. It is also not in dispute that the place of incident is a public place and there are lot of public offices/shops nearby. If the first few people did not join the investigation, other people could have been requested. It is not in dispute that that the spot was a public place where public persons were present. But no sincere efforts were made to make a public person to join the investigation. A public witness would have been an important link in the chain of circumstances to support the prosecution version. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an afterthought and is not worthy of credence. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
14. It is also pertinent to note that no handing over memo of the seal was prepared. Thereafter, the possibility of tampering with the case property cannot be ruled out. Further, none of the State vs. Israt FIR No.168/13 PS New Usmanpur Page 10 of 21 prosecution witnesses have deposed in their examination in chief that they offered their personal search to the accused before inspecting the accused. Principles of natural justice demand that accused should have been offered their personal search by the recovery witness and this fact should have been reduced into writing. This fact is another missing link in the prosecution's case.
15. Lastly, no DD entry has been proved on record by prosecution in order to show that PW1 and PW2 were present at khade wali masjid on 29.05.2013 at about 06:30 pm. It is an important missing link in the version of prosecution. As per chapter 22 rule 49 of the Punjab Police Rules , which is reproduced as under:
"Chapter 22 rule 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.
Note: - The term Police Station will include all places such as Police Lines and Police Posts where Register No.II is maintained."
16. In view of this rule, while deposing none of the prosecution witnesses have told that by what DD entry PW1 and PW2 were present at the spot. In Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
State vs. Israt FIR No.168/13 PS New Usmanpur Page 11 of 21"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 and attributes oblique motive on the part of the prosecution."
17. Thus, presence of PW1 and PW2 at the spot is not proved. If they had departed from PS the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution U/s 114 (g) of the Evidence Act that if the said Roznamancha had been produced it would have not shown their departure at all.
18. The accused Israt has also been charged offence under section 174A IPC as he had failed to attend in person this Court on 18.10.2022 in obedience to process under section 82 Cr. PC issued against him by this Court.
19. Section 174A of the Penal Code, 1860 reads as under:
"174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.-- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub- section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."State vs. Israt FIR No.168/13 PS New Usmanpur Page 12 of 21
20. Section 174A IPC is divided into two parts. First part deals with the situation where the proclamation is issued under Section 82(1) Cr.P.C. and when the accused failed to appear despite its publication, he is to undergo imprisonment upto three years or with fine or with both. The second part of Section 174A relates to the declaration issued by the Court under Section 82(4) Cr.P.C. wherein serious offences have been prescribed and despite declaring a person as proclaimed offender, when he fails to appear, the punishment provided is imprisonment upto seven years and payment of fine.
21. An argument was raised by Ld. LAC for accused that Section 195 Cr.P.C. clearly barred the Court from taking cognizance of any offences punishable under Sections 172 to 188 IPC. Provision of Section 195 Cr.P.C. is mandatory and the Court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing by the public servant.
22. In Maneesh Goomer vs. State, 2012(1)JCC 465 (Crl.M.C. 4208/2011) decided on 04.01.2012 Hon'ble Delhi High Court has categorically held that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174A IPC which was brought into the Penal Code with effect from 23.06.2006.
23. Section 174A IPC was introduced in the Code with effect from 23.06.2006 and Section 195A Cr.P.C. which provides that no Court shall take cognizance of offences punishable under State vs. Israt FIR No.168/13 PS New Usmanpur Page 13 of 21 Sections 172 to 188 IPC (Both inclusive) or of the abetment of committing the offence, except by complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate, was a part of the Criminal Procedure Code since 1974 when the new Criminal Procedure Code came into force. No corresponding amendment was brought into Section 195 (1) (a) in the year 2006 when a new offence, by adding Section 174A was introduced in Indian Penal Code. By no stretch of imagination, it can be inferred or presumed that Section 174A would be deemed to be included in between Section 172 to Section 188 IPC.
24. The Court in Maneesh Goomer (supra) held :
"....it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner. "State vs. Israt FIR No.168/13 PS New Usmanpur Page 14 of 21
25. In Moti Singh Sikarwar vs. State of U.P. and Ors, MANU/UP/2481/2016 , decided on 29.11.2016 by the High Court of Allahabad it has been observed that bar created by Section 195(1) (a) Cr.P.C. would not apply to the provisions of section 174AIPC. It held:
"21. The reasons are as follows:
"1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non- cognizable and bailable, whereas Section 174-A I.P.C. which provides for punishment upto 7 years imprisonment and fine, in case the offender fails to appear at the specified place and the specified time, as required by the proclamation published under Section 82 Cr.P.C., is cognizable and non- bailable. The legislature was conscious of this fact and that is why while introducing Section 174-A in the I.P.C. in the year 2006, it made no corresponding amendment in Section 195(1)(a) Cr.P.C. so as to include Section 174-A I.P.C. in between all the non- cognizable offences and bailable from Sections 172 to 188 I.P.C.
2. It cannot be said that due to inadvertence, the corresponding amendment in Section 195(1)(a) Cr.P.C., was left to be made by the legislature. It is noteworthy that Section 195 has been correspondingly amended in the year 2006, by amending the exception clause of it. Had there been any intention on the part of the legislature to include Section 174-A I.P.C. in Section 195(1)(a) Cr.P.C. it would have definitely correspondingly amended Section 195(1)(a) Cr.P.C. also.
3.Section 154 of Code of Criminal Procedure provides for information in cognizable cases and the concept of "locus standi" has been completely washed off by this section, as any person can set the law into motion, in case any cognizable offence is noticed by him, by registering a first information report. The public interest demands that criminal justice should be swift and sure and the court should not let the guilty scot free only on the basis of mere some technicalities. Section 460 Cr.P.C. is also based on the same principle.State vs. Israt FIR No.168/13 PS New Usmanpur Page 15 of 21
4. The basic principle of law is that one, who seeks equity should do equity. In other words the persons, who seeks equitable reliefs, should come before the court with clean hands. The accused has no right to choose the mode by which he is to be prosecuted specially in the circumstances when he has failed to comply with the orders of the court and is prolonging the matter by filing one case after another.
5. The Hon'ble Delhi High Court in Maneesh Goomer's case (supra) has held that Section 195 Cr.P.C. has not been correspondingly amended so as to include section 174-A I.P.C., which was brought into the Penal Code with effect from 23rd June 2006 and there is no reason to deviate with the view of Hon'ble Delhi High Court."
22. In view of the above discussion, this court is of the considered view that the bar of Section 195 (1)
(a) Cr.P.C. is not applicable to the present case and a private person is competent to lodge a complaint or even an F.I.R. under Section 174-A I.P.C."
26. In A. Krishna Reddy v. CBI 2017 SCC OnLine Del 7266 : (2017) 3 DLT (Cri) 391 , Hon'ble Delhi High Court in para 29 has observed that:
"No separate investigation is required to be conducted as the orders of the Court declaring the petitioner to be Proclaimed Offender are part of the record in the main challan. Object and purpose to incorporate Section 174A IPC primarily is to ensure that the accused / suspects do not scuttle investigation or trial by remaining absconding without valid or sufficient reasons. In such a scenario, when the suspects or accused abscond, possibility of valuable evidence to be washed away cannot be ruled out."
27. In State vs. Proclaimed Offenders of Delhi and others, Crl.No.2021/2010, decided on 11.08.2010 , Hon'ble Delhi High Court has held that supplementary charge-sheet under Section 174A IPC can be filed or the offence under Section 174A IPC can be added in the main charge-sheet. Apparently, no fresh State vs. Israt FIR No.168/13 PS New Usmanpur Page 16 of 21 investigation was required to be carried out.
28. In Sunil Tyagi vs. Govt. of NCT of Delhi and Another CRL.M.C. 4438/2013 & CRL.M.A. 15894/2013 , Hon'ble Delhi High Court has observed that:
"21. The legislature by enacting Section 174A IPC has further penalised the non-appearance of a proclaimed offender. The very basis of fair trial is threatened if an accused/suspect is declared as a proclaimed offender without proper service, or if proclamations and non-bailable warrants are issued in a routine manner.
22. The legislature seeing the growing number of Proclaimed offenders inserted Section 174A IPC by way of Clause 44 of the CrPC. (Amendment) Act, 2005 (25 of 2005) which was brought into force w.e.f. 23rd June, 2006 vide Notification No. SO 923(E) dated 21st June, 2006, hoping that it would be a deterrent for persons fleeing from justice.
23. Section 174A IPC penalizes the non- appearance of a person as required by a proclamation published under. In case of non- appearance consequent to a proclamation under Section 82(1) of the Code for a term up to three years/fine/both and in case of a declaration under Section 82(4) of the Code (in respect of offences under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the IPC for a term upto seven years with fine.
Since non-appearance of accused in response to the proclamation under Section 82 CrPC has been made a substantive offence, the provisions of Section 174A IPC are required to be invoked against absconding accused. When the accused fails to appear before the court in response to the proclamation issued under Section 82(1) CrPC, within the period of 30 days from the date of proclamation, or fails to appear at the specified place and time required by the proclamation issued under Section 82(4) CrPC, he is punishable with imprisonment for a term which may extend to three years or with fine or with both and imprisonment for a term which may extend to seven years or with fine or both, respectively."State vs. Israt FIR No.168/13 PS New Usmanpur Page 17 of 21
29. In the present case, proclamation under S. 82 Cr. P.C. was issued against accused Israt on 18.10.2022 and he was directed to appear before this Court on or before 05.12.2022. The proclamation was duly served and the statement of process server ASI Gajender Singh was recorded. As per the statement the given address could not be found and on inquiry from the neighbours it was found that there were so many streets in the area which were locality in a haphazard manner and without the exact gali number the house of the accused could not be traced. The process was also pasted on the naala wall at D-Block being a conspicuous place. Munadi in the given area was also done and copy of the process was also pasted outside the Court room. Therefore, process under S. 82 Cr. P. C. was duly executed against accused Israt as per the procedure laid not in the section itself including public announcement, despite that he failed to appear.
30. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human State vs. Israt FIR No.168/13 PS New Usmanpur Page 18 of 21 probabilities."
31. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
32. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: 'It is not mere possible doubt, because everything relating to human State vs. Israt FIR No.168/13 PS New Usmanpur Page 19 of 21 affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
33. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
34. Considering the aforesaid infirmities and inconsistencies in the prosecution version, I find that the prosecution has failed to prove the recovery of 100 quarter bottles of illicit liquor from the possession of accused. Benefit of doubt must go in favour of accused. It is cardinal principle of criminal law that accused is presumed to be innocent until proven guilty. In view of material inconsistencies in the prosecution version as discussed above, I find that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, accused Israt is acquitted for the offence under section 33 Delhi Excise Act.
State vs. Israt FIR No.168/13 PS New Usmanpur Page 20 of 2135. However, accused Israt is found guilty for offence under section 174A IPC in the present case and resultantly, he stands convicted. Let the convict be heard separately on quantum of sentence.
36. Accused is directed furnish personal bond in the sum of Rs.10,000/- with one surety of like amount u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed by VIPULVIPUL SANDWAR SANDWAR Date:
2024.05.10 16:19:09 +0530 Announced in the open (VIPUL SANDWAR) Court on 10 th May, 2024 MM-02/NE/KKD COURTS State vs. Israt FIR No.168/13 PS New Usmanpur Page 21 of 21