Delhi District Court
Jogender Singh vs State Of Delhi on 7 December, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-5, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 337 of 2019
CNR NO. DLSE01-004406-2019
IN THE MATTER OF:
Jogender Singh
S/o Om Prakash
R/o Village Hazipur,
Noida, UP.
Permanent R/o Village Bijua,
Nagia Thana Ganmour,
District Sarabhai, UP.
.......Appellant
Versus
State of Delhi
........Respondent
Instituted on : 15.06.2019
Reserved on : Not reserved
Pronounced on : 07.12.2022
JUDGMENT
1. Vide instant appeal, the appellant takes exception to the judgment of conviction dated 29.03.2019 and order on sentence dated 15.05.2019, passed by the learned Metropolitan Magistrate-07, South CA No. 337/2019 Jogender Kumar v. State Page No. 1 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:46:30 +0530 East District, Saket Courts, New Delhi in First Information Report (FIR) No. 634/2014, Police Station Sunlight Colony, under Section 33 Delhi Excise Act, titled as "State vs. Jogender Singh", whereby appellant was convicted for offence under section 33 Delhi Excise Act. Vide order on sentence dated 15.05.2019, the appellant was sentenced to undergo simple imprisonment for a period of 06 months and was further directed to pay a fine of Rs.50,000/- for offence u/s 33 Delhi Excise Act. In default of payment of fine, appellant was directed to undergo simple imprisonment for 15 days.
2. Case of prosecution in brief is that on 29.09.2014 at about 5.30 AM on ring road near Shiv Shakti Mandir, Kilokari, New Delhi within jurisdiction of PS Sunlight Colony, appellant/accused was found in possession of 14 patties containing (48 quarter bottles in each patti) of illicit liquor (for sale in Haryana) without having any permit or license. On these allegations, appellant was charged for commission of offence under section 33 read with section 52 (2) Delhi Excise Act.
3. Prosecution to prove its case examined four (04) witnesses before Ld. Trial Court.
4. PW1 ASI Surender Pal deposed that on 29.09.2014 at about 5.00 AM, on receipt of secret information that one car make Tata Indica bearing No. UP16AT-0952 carrying illicit liquor is coming towards Faridabad and going to Noida, he conveyed the said CA No. 337/2019 Jogender Kumar v. State Page No. 2 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:46:40 +0530 information to SI Manoj Kumar; that he alongwith SI Manoj Kumar had started checking the vehicles in front of Shiv Shakti Mandir, Kilokari Village, Ring Road; that at about 5.30 AM he had signaled to stop the aforesaid car; that the driver had stopped the car and on being checked, it was found containing 14 patties (each patti containing 48 quarter bottles) of illicit liquor for sale in Haryana only; that he had apprehended the driver namely Jogender; that he made call to PS Sunlight Colony about the recovery of illicit liquor; that in the meantime HC Virender Pal and Ct. Ashok from PS Sunlight Colony came at the spot and he had handed over the accused to HC Virender Pal who seized the recovered illicit liquor vide memo Ex. PW1/B as well as said car vide memo Ex. PW1/C; that IO had arrested the accused vide memo Ex. PW1/D and took his personal search vide memo Ex. PW1/E. 4A. During cross examination, witness deposed that IO did not serve notice u/s 160 CrPC to public persons who refused to join the investigation. He further deposed that IO had handed over seal to HC Ashok.
5. PW2 ASI Virender Pal and PW4 Ct. Ashok deposed on the lines of PW1.
6. PW3 Ct. Gyan Singh has proved DD No. 31A (Ex. PW3/A).
CA No. 337/2019 Jogender Kumar v. State Page No. 3 of 8
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.12.07
10:46:53 +0530
7. Record transpires that during course of trial, the accused admitted certain documents of prosecution i.e. registration of FIR Ex. PA-1 and Chemical report Ex. PA-2 vide his separate statement u/s 294 CrPC recorded on 22.11.2018 before Ld. Trial Court.
8. After conclusion of prosecution evidence, statement of appellant was recorded under section 313 CrPC, wherein he claimed to be falsely implicated and chose not to lead any evidence in his defence.
9. Ld. Trial Court vide impugned judgment convicted the appellant for offence u/s 33 Delhi Excise Act while observing that prosecution has proved its case beyond all reasonable doubts.
10. The appellant is aggrieved with the said judgment and has assailed the same vide instant appeal. The sum and substance of his arguments are as under:-
(i) That the impugned judgment of conviction and order on sentence are based on presumption, surmises and conjectures and same are liable to be set-aside;
(ii) That the recovery has been planted upon the appellant;
(iii) That no public persons were joined at the time of alleged recovery;
(iv) That Ld. Trial Court failed to appreciate that prosecution has not proved its case beyond reasonable doubt and mere presumption cannot result into conviction of appellant;
CA No. 337/2019 Jogender Kumar v. State Page No. 4 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:47:01 +0530
11. Per contra, Ld. Addl. PP for the state has opposed the appeal, stating that Ld. Trial Court has rightly convicted and sentenced the appellant and instant appeal is liable to be dismissed.
12. I have heard rival contentions and perused the record.
13. 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.
14. In the instant case, as per PW1, seal after use was handed over to PW4 Ct. Ashok who had accompanied the IO to the spot and not to any independent person which creates a doubt on the sample as whether the same were intact and not tampered with. In the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held in Para 7 as:
"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 the samples being tampered with cannot be ruled out."
15. In Rajesh Jagdamba Avasthi Vs. State of Goa (2005) 9 CA No. 337/2019 Jogender Kumar v. State Page No. 5 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:47:07 +0530 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15 .......................... In these circumstances there is justification in the argument that since the seal as well as the packets remained in the custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case."
16. In the present case, as per prosecution witnesses, public persons were asked to join the investigation, but none of them agreed. However, admittedly no written notice was served upon them to join the proceedings in the present case or to face action u/sec. 187 IPC. Therefore, it is clear that sincere efforts were not made to join the independent witnesses despite their availability which causes a serious dent in the story of the prosecution . The reliance is placed on Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Roop Chand Vs. The State of Haryana 199 (1) C.L.R. 69 and Sadhu Singh Vs. State of Punjab 1997 (3) Crime 55.
17. 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 CA No. 337/2019 Jogender Kumar v. State Page No. 6 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:47:14 +0530 concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
18. As per the prosecution case, seizure memo Ex. PW1/B of the liquor was prepared before the preparation of the Rukka. However, the said document contains the number of FIR which shows serious infirmity in the case of prosecution as either the number of the FIR was inserted later on or that it was prepared before the time it is shown to have been prepared. Be that as it may the same creates a reasonable doubt in the story of prosecution. The reliance is placed on the judgment of Giri Raj Vs. State 83 (2000) DLT 201, Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J. 1510, Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J. 114.
19. Even no statutory presumption in terms of section 52 of the Act, can be drawn against accused as the alleged recovery of liquor from the accused has become doubtful in view of the reasons mentioned above. Hence, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the CA No. 337/2019 Jogender Kumar v. State Page No. 7 of 8 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:47:23 +0530 appellant/accused beyond all reasonable doubts and he deserves to be acquitted in the present case.
20. Accordingly, the instant appeal stands allowed. The impugned judgment and order on sentence stand set-aside. Appellant stands acquitted in the present case. He is directed to furnish personal bond in the sum of Rs. 10,000/- with one surety of like amount before concerned Trial Court in terms of section 437-A CrPC within three days.
21. TCR be sent back to Ld. Trial Court alongwith copy of the judgment. Appeal file be consigned to record room after due Digitally signed by compliance. ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.12.07 10:47:31 +0530 Announced in the open (ANUJ AGRAWAL) court on 7th December, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No. 337/2019 Jogender Kumar v. State Page No. 8 of 8