Delhi District Court
State vs Rajesh & Anr on 13 October, 2022
IN THE COURT OF SH. PUNEET PAHWA,
CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST02-001498-2014
IN THE MATTER OF:
State Vs Rajesh & Anr
FIR No.349/2011
PS Ambedkar Nagar
U/s 33/52 of the Delhi Excise Act, 2009
JUDGMENT
A) Sl. No. of the case : CR No. 2034210/2016
B) The date of commission of : 05.12.2011
offence
C) The name of the complainant : ASI Bhagirath.
D) The name and address of : (1) Rajesh S/o Sh. Sh. Rajaram,
accused R/o House No.F-I/166, Sangam
Vihar, New Delhi.
(2) Chaman Lal, S/o Late Sh. Hari
Ram, R/o House No.217, Village
Ladpura, PS Kasna, Distt. Gautam
Budh Nagar, UP.
E) Offence complained of : 33/52 of the Delhi Excise Act,
2009
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 13.10.2022
FIR No.349/2011 PS Ambedkar Nagar Page No.1 of 21
DATE OF INSTITUTION : 26.05.2014
DATE OF FINAL ARGUMENTS : 26.09.2022
DATE OF JUDGMENT : 13.10.2022
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The present case has originated from the charge-sheet filed by the State, against accused (1) Rajesh S/o Sh. Sh. Rajaram and (2) Chaman Lal, S/o Late Sh. Hari Ram. As per charge-sheet, on 05.12.2011 at about 05:30 P.M. at Peepal Wala Chowk, M.B. Road, Madangir, New Delhi, within the jurisdiction of PS Ambedkar Nagar, accused Rajesh were found in possession of illicit liquor which was kept inside a TSR bearing Registration No.DL1RJ3979 of which accused Chaman Lal is the registered owner, and the aforesaid illicit liquor was being possessed without any license or permit to possess, thus they have committed an offence under Section 33 r/w Section 52 Delhi Excise Act.
2. On the basis of the charge-sheet, court took cognizance of the offence and the accused appeared, thereafter, he was supplied with copy of charge-sheet and documents in compliance of Section 207 Cr.P.C. Court framed charge against the accused for offence punishable under Section 33/52 Delhi Excise Act. Charge was read over and explained to him to which he pleaded not guilty and claimed trial.
3. During trial, accused admitted under Section 294 Cr.P.C. the registration of FIR No.349/2011 PS Ambedkar Nagar; copy of register n.19 and 21; and Excise report dated 30.01.2012 given by Sh. Anil Kumar and FIR No.349/2011 PS Ambedkar Nagar Page No.2 of 21 Ms. Madhu Shukla. Also, State examined nine witnesses viz. PW-1 SI Bhagirath Prasad, PW-2 ASI Satender Singh, PW-3 ASI Tek Chand, PW-4 HC Mohd. Abbas, PW-5 ASI Sunil Gaur, PW-6 ASI Dilip Singh, PW-7 ASI Ved Prakash, PW-8 SI Sandeep Verma, PW-9 Sh. Dharmender.
4. During examination in chief, PW-1 SI Bhagirath Prasad, deposed that on 05.12.2011, he was posted as ASI at Special staff, South East District, Delhi. On that day he alongwith Ct. Mohd. Abbas and Ct. Tek Chand were on patrolling duty in the area of PS Ambedkar Nagar. During the course of patrolling at around 4:30 PM, when they reached at Batra hospital, one secret informer came there and he had informed him that one TSR loaded with illicit liquor would come from MB road side and it was going towards Dakshinpuri jhuggi side via Peepalwala Chowk. If a raid conducted, he would be apprehended. Thereafter, he shared the said information with Insp. Special Staff on telephone and he directed him to carry out the appropriate proceedings. Thereafter, he shared the said information with Ct. Mohd. Abbas and Ct. Tek Chand. Thereafter, they went to Peepal Wala chowk alongwith secret informer. One HC Ved Prakash from Excise Deptt. met them and he informed them that he had same secret informer with him. Thereafter, he requested 4-5 public persons to join the raiding party, but none agreed and they left the spot without disclosing their names and addresses. Without wasting time, he formed a raiding party comprising of the above said police officials and the secret informer. Thereafter, they took the position at Peepal wala chowk. At about 5:30 PM, a TSR was coming from FIR No.349/2011 PS Ambedkar Nagar Page No.3 of 21 MB road side and the secret informer pointed out towards the same and informed them that the said TSR was the same as described earlier and thereafter, he left from there. Thereafter, they appreheneded the said TSR. One person/driver was present inside the said TSR. On inquiry, he revealed his name as Rajesh. Identity of accused was not disputed by the Ld. Defence counsel. On checking of the said TSR, 8 cartons were lying on the floor and back seat of the said TSR. On opening of the said cartons, they found 24 half bottles of illicit liquor namely Nimbu Masaledar Desi Sharab, for sale in Haryana in each carton. Thereafter, he took out one half bottles as sample from each carton and marked the same from Sl. No.S-1 to S-8. Thereafter, the said sample were put in a white colour bag and sealed with the seal of ASD. The kattas were marked from Sl. No.1 to 4. Thereafter, he filled Form M-29 at the spot which is Ex.PW1/A. The seal after use, was given to Ct. Mohd. Abbas. Thereafter, he seized the said liquor vide seizure memo Ex.PW1/B. The said TSR bearing registration no. DL 1RJ 3979 was also seized vide seizure memo which is Ex.PW1/C. He prepared a tehri which is Ex.PW1/D. The tehrir was handed over to Ct. Mohd. Abbas for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR, the investigation of the case was entrusted to HC Satender on the direction of senior officials who came at the spot alongwith Ct. Mohd. Abbas. He handed over the said documents, sealed case property i.e. illicit liquor and the case property i.e. TSR and accused to him. IO HC Satender prepared a site plan at his instance which is ex.PW1/E. IO recorded his FIR No.349/2011 PS Ambedkar Nagar Page No.4 of 21 supplementary statement. Thereafter, he left the spot. He could identify the case property if shown to him. The identity of the case property i.e. said TSR is not disputed by Ld. Defence counsel which is Ex.P1. The identity of the case property i.e. illicit liquor is not disputed as the same is already Ex.P2 (colly). PW-1 was duly cross-examined by Ld. Counsel for the Defence.
5. PW-2 ASI Satender Singh deposed that on 05.12.2011, he was posted as HC at Special Staff, South East, Distt., Delhi. On that day, he was present in the office of Special staff. At about 7:35 PM, duty officer called him and he reached at PS Ambedkar Nagar. Duty officer handed over the copy of FIR and original rukka to Ct. Mohd. Abbas who brought the rukka to the PS. Thereafter, Ct Mohd. Abbas handed over him copy of the FIR and original rukka to him. Thereafter, he alongwith Ct. Mohd. Abbas went to the spot i.e. Pipal Wala Chowk, MB Road, Madangir, Ambedkar Nagar, New Delhi where he met ASI Bhairath, Ct. Tek Chand, HC Ved Prakash. ASI Bhagirath produced a person alongwith recovered sealed illicit liquor and documents to him. The case property i.e. TSR was also produced before him. On inquiry, accused revealed his name as Rajesh. Witness correctly identified the accused. He prepared a site plan at his instance Ex.PW1/E. He recorded the statement of ASI Bhagirath and thereafter, he left the spot. Thereafter, he interrogated the accused and arrested him vide arrest memo Ex.PW2/A. He also carried out personal search of accused which is Ex.PW2/B. He recorded disclosure statement of accused which is Ex.PW2/C. After medical examination, accused was sent to the lockup. The FIR No.349/2011 PS Ambedkar Nagar Page No.5 of 21 case property was deposited at malkhana of PS Ambedkar Nagar. He recorded the statement of witnesses. He could identify the case property if shown to him. The identity of the case property i.e. said TSR is not disputed by Ld. Defence counsel which is Ex.P1. The identity of the case property i.e. illicit liquor is not disputed as the same is already Ex.P2 (colly). Later on, on his instructions Ct. whose name he does not remember took the sealed samples from malkhana and deposited the same at Excise Lab. Later on, he collected the report from Chemical examiner. Thereafter, he was transferred from Special Staff to Security unit. He deposited the case file with reader of Inspector Special Staff. PW-2 was duly cross-examined by Ld. Counsel for the Defence.
6. PW-3 ASI Tek Chand deposed that on 05.12.2011 he was posted as Ct. at Special Staff, South East District, Delhi. On that day, he alongwith Ct. Mohd. Abbas and ASI Bhagriath were on patrolling duty in the area of PS Ambedkar Nagar. During the course of patrolling at around 4:30 PM, when they reached at Batra hospital, one secret informer came there and he had informed ASI Bhagirath. Thereafter, ASI Bhagirath briefed the secret informer to them that one TSR loaded with illicit liquor would come from MB road side and it was going towards Dakshinpuri Jhuggi side via Peepalwala Chowk. If a raid conducted, he would be apprehended. ASI Bhagirath informed Insp. Special Staff regarding the said secret informer and on his direction, a raiding party was constituted comprising of above said police officials and secret informer. Thereafter, they went to Peepal Wala FIR No.349/2011 PS Ambedkar Nagar Page No.6 of 21 Chowk alongwith secret informer. One HC Ved Prakash from Excise Department met them and he informed them that he had same secret information with him. Thereafter, ASI Bhagirath requested 4-5 public persons to join the raiding party, but non agreed and they let the spot without disclosing their names and addresses. Thereafter, they took the position at Peepalwala Chowk. At around 5:30 PM, a TSR was coming from MB Road side and the secret informer pointed out towards the same and informed them that the said TSR was the same as described earlier and thereafter he left from there. Thereafter, they apprehended the said TSR. One person/driver was present inside the said TSR. On inquiry, accused revealed his name as Rajesh. Witness could identify the case property if shown to him. The identity of the accused is not disputed by the Ld. Defence counsel. On checking of the said TSR, 8 cartons were lying on the floor and back seat of the said TSR. On opening of the said cartons, they found 24 half bottles of illicit liquor namely Nimbu Masaledar Desi Sharab, for sale in Haryana in each carton. Thereafter, ASI Bhagirath took out one half bottles as sample from each carton and marked the same from Sl. No.S-1 to S-8. Thereafter, the said samples were put in a white colour bag and sealed with the seal of ASD. Thereafter, they put two cartons in one katta and sealed with the seal of ASD. The kattas were marked from Sl. no.1 to 4. Thereafter, ASI Bhagirath filled Form M-29 at the spot which is already Ex.PW1/A. The seal after use, was given to Ct. Mohd. Abbas. Thereafter, ASI Bhagirath seized the said liquor vide seizure memo which is Ex.PW1/B. The said TSR FIR No.349/2011 PS Ambedkar Nagar Page No.7 of 21 bearing registration no. DL 1RJ 3979 was also seized vide seizure memo which is Ex.PW1/C. ASI Bhagirath prepared a tehrir which is Ex.PW1/D. The tehrir was handed over to Ct. Mohd. Abbas for registration of FIR. He went to PS, got the FIR registered. After registration of FIR, the investigation of the case was entrusted to HC Satender on the direction of senior officials who came at the spot alongwith Ct. Mohd. Abbas. ASI Bhagirath handed over the said documents, sealed case property i.e. illicit liquor and the case property i.e. TSR and accused to him. IO HC Satender prepared a site plan at the instance of ASI Bhagirath which is Ex.PW1/E. IO recorded his statement and thereafter, he left from there. IO arrested and carried out the personal search of both the accused persons vide memos which are Ex.PW2/A and Ex.PW2/B respectively. IO recorded statement of accused which is Ex.PW2/C. Thereafter the case property was deposited in malkhana. After medical examination, accused was sent to the lockup. IO recorded his signature. He could identify the case property if shown to him. The identity of the case property i.e. said TSR is not disputed by Ld. Defence counsel which is Ex.P1. The identity of the case property i.e. illicit liquor is not disputed as the same is already Ex.P2 (colly). PW-3 was duly cross- examined by Ld. Counsel for the Defence.
7. PW-4 HC Mohd. Abbas deposed that on 05.12.2011, he was posted as Ct. at Special Staff, South East District, Delhi. On that day, he alongwith Ct. Tek Chand and ASI Bhagirath were on patrolling duty in the area of PS Ambedkar Nagar. During the course of patrolling at around 5:30 FIR No.349/2011 PS Ambedkar Nagar Page No.8 of 21 PM when we reached at Batr hospital, one secret informer came there and he had informed ASI Bhagirath briefed the said secret information to them that one TSR loaded with illicit liquor would come from MB road side and it was going towards Dakshinpuri jhuggi side via Peepalwala Chowk. If a raid conducted, he would be apprehended. ASI Bhagirath informed Insp. Special Staff regarding the said secret information and on his direction, a raiding party was constituted comprising of above said police officials and secret informer. Thereafter, they went to Peepal Wala Chowk alongwith secret informer. One HC Ved Prakash from Excise Department, met them and he informed them that he had same secret information with him. Thereafter, ASI Bhagirath requested 4-5 public persons to join the raiding party, but none agreed and they let the spot without disclosing their names and addresses. Thereafter, they took the position at Peepal Wala Chowk. He does not know the exact time, however, a TSR was coming from MB road side and the secret informer pointed out towards the same and informed them that the said TSR was the same as described earlier and thereafter, he left from there. Thereafter, they apprehended the said TSR. One person/driver was present inside the said TSR. On inquiry, the name of the said driver was revealed as Rajesh. Witness correctly identified the accused. On checking of the said TSR, 8 cartons were lying on the floor and back seat of the said TSR. On opening of the said cartons, they found 24 half bottles of illicit liquor namely Nimbu Masaledar Desi Sharab, for sale in Haryana in each carton. Thereafter, ASI Bhagirath took out one half bottles as sample from each FIR No.349/2011 PS Ambedkar Nagar Page No.9 of 21 carton and marked the same from Sl. No. S-1 to S-8. Thereafter, the said sample were put in a white colour bag and sealed with the seal of ASD. Thereafter, ASI Bhagirath marked the said cartons from Sl. No.1 to 8. Thereafter, they put two cartons in one katta and sealed with the seal of ASD. The kattas were marked from Sl. No.1 to 4. Thereafter, ASI Bhagirath filled Form M-29 at the spot which is Ex.PW1/A. The seal after use was given to him. Thereafter, ASI Bhagirath seized the said liquor vide seizure memo which is Ex.PW1/B. The said TSR bearing registration no. DL-1RJ-3979 was also seized vide seizure memo which is Ex.PW1/C. ASI Bhagirath prepared a tehrir which is Ex.PW1/D. The tehrir was handed over to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR, the investigation of the case was entrusted to HC Satender on the direction of senior officials who came at the spot alongwith him. ASI Bhagirath handed over the said documents, sealed case property i.e. illicit liquor and the case property i.e. TSR and accused to him. IO HC Satender prepared a site plan at the instance of ASI Bhagirath which is Ex.PW1/E. IO recorded his statement and thereafter, he left from there. IO arrested and carried out personal search of both accused persons vide memos which are Ex.PW2/A and Ex.PW2/B respectively. IO recorded disclosure statement of accused which is Ex.PW2/C. Thereafter, the case property was deposited in malkhana. After medical examination, the accused was sent to the lockup. IO recorded his statement. Witness could identify the case property if shown to him. The identity of the case property i.e. said TSR is FIR No.349/2011 PS Ambedkar Nagar Page No.10 of 21 not disputed by Ld. Defence counsel which is Ex.P1. The identity of the case property i.e. illicit liquor is not disputed as the same is Ex.P2 (colly). PW-4 was duly cross-examined by Ld. Counsel for the Defence.
8. PW-5 ASI Sunil Gaur, deposed that on 11.02.2014, he was posted as HC at Special Staff, South East District. On that day, he had joined the investigation of the present case. During the course of investigation, IO SI Sandeep Verma called accused Chaman Lal at Special Staff office and he reached there. IO interrogated him. IO arrested the accused Chaman Lal vide memos which is Ex.PW5/A. The accused was on anticipatory bail and thereafter, he was released on bail after furnishing bail bonds. IO recorded his statement in this regard. Witness correctly identified the accused.
9. PW-6 ASI Dilip Singh, deposed that on 11.02.2014, he was posted as Ct. at Special Staff, South East District. On that day, he had joined the investigation of the present case. During the course of the investigation, IO SI Sandeep Verma called accused Chaman Lal at Special staff office and he reached there. IO interrogated him. IO arrested you vide memos which Ex.PW5/A. The accused was on anticipatory bail and thereafter he was released on bail after furnishing bail bonds. IO recorded his statement in this regard. Witness correctly identified the accused.
10. PW-7 ASI Ved Prakash, deposed that on 05.12.2011, he was posted as HC at Excise deptt., ITP, Delhi. On that day, he reached at MB road near Khanpur for collecting the information pertaining to the transportation of illicit liquor. One secret informer met him and informed FIR No.349/2011 PS Ambedkar Nagar Page No.11 of 21 him that illicit liquor would come in a TSR and the said TSR would go to jhuggi of Dakshinpuri. If a raid conducted, the said illicit liquor would be recovered. Thereafter, the secret informer left from there. Thereafter, he went to Peepal Wala Chowk, MB Road where he met ASI Bhagirath, Ct. Tek Chand, Ct. Mohd. Abbas and the secret informer. He informed the said police officials regarding the secret information received by him. They had informed him that they had also received the same secret information. Thereafter, ASI Bhagirath requested 4-5 public persons to join the raiding party, but none agreed and they left the spot without disclosing their names and addresses. Thereafter, they took the position at Peepal Wala Chowk. At about 5:30 PM, a TSR bearing registration no.DL-1RJ 3979 was coming from MB road side and the secret informer pointed out towards the same and informed us that the said TSR was the same as described earlier and thereafter, he left from there. Thereafter, they apprehended the said TSR. Accused Rajesh was present inside the said TSR. On inquiry, accused revealed their name as Rajesh. Witness correctly identified the accused. On checking of the said TSR, 8 cartons were lying on the floor and back seat of the said TSR. On opening of the said cartons, they found 24 half bottles of illicit liquor namely Nimbu Masaledar Desi Sharab, for sale in Haryana in each carton. Thereafter, ASI Bhagirath took out one half bottles as sample from each carton and marked the same from Sl. No. S-1 to S-8. Thereafter, the said sample were put in a white colour bag and sealed with the seal of ASD. Thereafter, ASI Bhagirath marked the said cartons from Sl. No.1 to 8.
FIR No.349/2011 PS Ambedkar Nagar Page No.12 of 21 Thereafter, they put two cartons in one katta and sealed with the seal of ASD. The kattas were marked from Sl. No.1 to 4. Thereafter, ASI Bhagirath filled Form M-29 at the spot which is Ex.PW1/A. The seal after use was given to him. Thereafter, ASI Bhagirath seized the said liquor vide seizure memo which is Ex.PW1/B. The said TSR bearing registration no. DL-1RJ-3979 was also seized vide seizure memo which is Ex.PW1/C. ASI Bhagirath prepared a tehrir which is Ex.PW1/D. The tehrir was handed over to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR, the investigation of the case was entrusted to HC Satender on the direction of senior officials who came at the spot alongwith him. ASI Bhagirath handed over the said documents, sealed case property i.e. illicit liquor and the case property i.e. TSR and accused to him. IO HC Satender prepared a site plan at the instance of ASI Bhagirath which is Ex.PW1/E. IO recorded his statement and thereafter, he left from there. IO arrested and carried out personal search of both the accused vide memos which are Ex.PW2/A and Ex.PW2/B respectively. IO recorded disclosure statement of accused which is Ex.PW2/C. Thereafter the case property was deposited in malkhana. After medical examination, the accused was sent to the lockup. IO recorded his statement. He could identify the case property if shown to him. The identity of the case property i.e. said TSR is not disputed by Ld. Defence counsel which is Ex.P1. The identity of the case property i.e. illicit liquor is not disputed as the same is Ex.P2 (colly). Witness correctly identified the accused. PW-7 was duly cross-examined by Ld. Counsel for FIR No.349/2011 PS Ambedkar Nagar Page No.13 of 21 the Defence.
11. PW-8 SI Sandeep Verma, deposed that the investigation of this case was assigned to him for further investigation after transfer of previous IO HC Satender. During his investigation, he formally arrested accused Chaman Lal who got anticipatory bail from Ld. ASJ. His arrest memo is Ex.PW5/A. Thereafter, he concluded the investigation and filed the charge- sheet before the Ld. MM. Accused Chaman Lal was correctly identified by the witness.
12. PW-9 Sh. Dharmender deposed that on 17.02.2012, he received notice u/s 160 CrPC from police. He told them that on the day of incident, his brother in law (saala) namely Rajesh was using auto rickshaw bearing registration no. DL-1RJ-3979. He signed the document. The notice u/s 160 CrPC is Ex.PW9/A and the same bears his signature at point A on both the sides. However, he was not aware of the contents of the same. When he signed it, it was blank. PW-9 was duly cross-examined by Ld. Counsel for the Defence. Since PW-9 had not fully supported the case of the prosecution, he was cross-examined by Ld. APP for the State.
13. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to them, to which they pleaded innocence and claimed to have been falsely implicated. Accused chose not to lead any defence evidence. Final arguments of both the parties were heard at length.
FIR No.349/2011 PS Ambedkar Nagar Page No.14 of 21 COURT OBSERVATION:
14. At the outset, it is pertinent to note that Section 33 of Delhi Excise Act read as:
"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 license, 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 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.
15. At the outset, it is pertinent to note that Section 52 of Delhi Excise Act read as:
FIR No.349/2011 PS Ambedkar Nagar Page No.15 of 21 "52. Declaration of dry days and conditions applicable thereto.
(1) No licensee shall sell liquor on the days, which are notified as dry days by the Excise Commissioner, with the previous approval of the Government from time-to-
time:
Provided that this restriction shall not apply to the service of liquor by the holder of a licence in Form L-15 to a resident in his room:
Provided further that this restriction shall not apply to the service / sale of liquor by the holders of licence in the Forms L-16, L-17, L-19, L-20, L-21, L- 22, L-28, L-29, P-10 and P-13 on all dry days except Republic Day, Independence Day and Mahatma Gandhi's Birthday:
Provided also that the Excise Commissioner, with the prior approval of the Government, may-
(i) delete any day from or add any day to the list of dry days notified under this rule;
(ii) permit consumption of liquor on any licensed premises on any dry day.
(2) No licensee shall be entitled to any compensation on account of any addition to the list of dry days in accordance with clause (a) of proviso three to sub-rule (1).
(3) The business premises of a licensee shall be kept closed on all dry days:
Provided that the Assistant Commissioner may, by order in writing permit a licensee to deposit liquor in his premises, or to open the premises for any work other than slae, on a dry day on prescribed fee.
16. It is the case of prosecution that on on 05.12.2011 at about 05:30 P.M. at Peepal Wala Chowk, M.B. Road, Madangir, New Delhi, within FIR No.349/2011 PS Ambedkar Nagar Page No.16 of 21 the jurisdiction of PS Ambedkar Nagar, accused Rajesh was found in possession of illicit liquor which was kept inside a TSR bearing Registration No.DL1RJ3979 of which accused Chaman Lal is the registered owner, and the aforesaid illicit liquor was being possessed without any license or permit to possess, thus they have committed an offence under Section 33 r/w Section 52 Delhi Excise Act. Per contra, it is the Defence of accused that no public witness joined the proceedings. Also, there is discrepancy in the depositions of prosecution witnesses.
17. In order to prove the alleged offence, the prosecution is first and foremost required to prove the recovery of illicit liquor from the possession of accused. In order to prove the said recovery, it is a mandate to comply provision of section 100 (4) of the Cr.PC. Admittedly, the incident happened in a residential colony but no public person has been examined. Under these circumstances, there is absolute non compliance of Section 100 Cr.PC Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
FIR No.349/2011 PS Ambedkar Nagar Page No.17 of 21
18. In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court 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 evidence 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".
19. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the FIR No.349/2011 PS Ambedkar Nagar Page No.18 of 21 prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join 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 under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. 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 after thought and is not worthy FIR No.349/2011 PS Ambedkar Nagar Page No.19 of 21 of credence. All these facts taken together make the prosecution case highly doubtful".
20. Prosecution has failed to prove when a number of people from the locality were available, why the testimony of said witnesses were not recorded. All the witnesses except PW-9 are official witnesses. PW-9 who was not an official witness has not fully supported the case of the prosecution.
21. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB), 1997(1) R.C.R.(Criminal)
662).
22. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in his favour. Accordingly, accused (1) Rajesh S/o Sh. Sh. Rajaram and (2) Chaman Lal, S/o Late Sh. Hari Ram are accordingly acquitted for the offence under section 33/52 Delhi Excise Act. Their Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and FIR No.349/2011 PS Ambedkar Nagar Page No.20 of 21 identification.
23. Case property, if any, be confiscated to the State after the expiry of the period of the appeal. Accused is directed to furnish necessary surety bonds under Section 437A CrPC.
24. File be consigned to Record Room, after due compliances.
(PUNEET PAHWA) CHIEF METROPOLITAN MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 13th October, 2022 FIR No.349/2011 PS Ambedkar Nagar Page No.21 of 21