Delhi District Court
Title State vs . Amilal on 20 December, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
EAST KARKARDOOMA COURTS : DELHI
FIR No. 519/2013
Unique Case ID No. 165/2016
Title State Vs. Amilal
Name of complainant Ct. Manoj
Name of accused State Vs. Amilal
S/o Sh. Kishan Lal
R/o H. No. A-12/215, Rajbir
Colony, Delhi
Date of institution of challan 25.02.2014
Date of Reserving judgment 13.12.2021
Date of pronouncement 20.12.2021
Date of commission of offence 04.12.2013
Offence complained of Under Section 33 Delhi Excise
Act
Offence charged with Under Section 33 Delhi Excise
Act
Plea of the accused Pleaded not guilty
Final order Acquitted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
The present case arises from the complaint Ex. PW1/A
wherein the prosecution has alleged that on 04.12.2013 at about
12.15 am (mid night) at A-Block, Gali No. 7, Rajbir Colony, Delhi,
within the jurisdiction of PS Gazipur, accused was found in
possession of 22 half bottles of illicit liquor make Empiror Blue
Whiskey for sale in Haryana only in contravention of the provision
of Delhi Excise Act without any permit or license. Thereafter,
investigation was conducted and the present charge sheet was filed
u/s. 33 Delhi Excise Act.
2. Accused appeared before this Court and after
FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 1 of 7
compliance of Section 207 IPC, charge was framed against the
accused u/s. 33 Delhi Excise Act on 26.02.2016, to which the
accused pleaded not guilty and claimed trial.
3. On the aforesaid charge, the prosecution examined
seven witnesses including the complainant Ct. Manoj as PW1.
Thereafter, statement of accused was recorded. Accused examined
four witnesses in defence evidence. Thereafter, DE was closed and
final arguments were heard from Sh. Chaman Kumar Ld. Counsel
for accused and Sh. Krishan Murari, Ld. APP for the State.
4. The primary burden lies on the prosecution in a
criminal trial to prove its case beyond all reasonable doubts and
once the case of the prosecution is well established, the ingredients
of all the offences are satisfied, the onus then shifts on the accused
to rebut the case of the prosecution on preponderance of
probabilities. However, if the primary burden itself is not met by
the prosecution, the onus never shifts on the accused and he gets
entitled to benefits of doubt and hence, acquittal.
5. In the present case, as per the original complaint
Ex. PW1/A, the accused was carrying 22 half bottles of illicit
liquor in one plastic katta on his left shoulder in the middle of the
night. It is surprising that given the fact that admittedly the spot
was a busy place and the public place, the accused should be
carrying such huge quantities of illicit liquor in a public place so
openly and that too in a plastic katta on his left shoulder.
6. Interestingly, all the witnesses examined by the
prosecution are police witnesses. In his cross-examination dated
06.06.2019, PW7 and PW1 in his examination in chief dated FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 2 of 7 25.04.2017 have admitted that the spot was a public place and that 1-2 persons were coming and going from there and 2-3 persons were gathered at the spot. PW1 has further admitted that he did not serve any notice to those public persons when they left the spot without telling their names and addresses. IO failed to join any independent public witness to corroborate the case of the prosecution. It is evident from the examination of all the above prosecution witnesses that the spot was a public place, public witnesses were available, but despite that they were not joined in the investigation, nor any notice was served to them as is required by law.
Although, it is not a legal requirement or a mandate required by law that the testimony of police officials cannot be relied upon and has to be rejected at the very outset yet, the testimony of police officials are to be considered with a lot of caution. In the present case, accused was apprehended at a public place admittedly and public witnesses were also available, but public persons were neither made witness to the recovery or arrest of accused, but also no notice was served upon the public persons who allegedly refused to participate in the proceeding. Facts and circumstances of the present case suggest that no sincere efforts have been made to join independent public witnesses in the police proceeding. In the case reported as Anoop Joshi Vs. State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has deprecated the practice of the police officials of not making any sincere efforts to join the public witnesses when they are available. Similarly, in the case reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court has also not viewed with favour the practice of the police of not joining any public witness and not making any sincere efforts in that regard FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 3 of 7 when they are readily available. Non joining of the public witnesses and not making any sincere efforts in this regard creates a doubt about the case of the prosecution.
7. Further, from the record, it appears that after the apprehension of the accused but before taking the formal/casual search of the accused, police official(s) had not offered their own search to the accused before taking his search. At this juncture, it would be appropriate to refer the judgment of Hon'ble High Court reported as Rabindernath Prusty Vs. State of Orissa. In this case relying upon the judgment of Supreme Court in State of Bihar Vs. Kapil Singh AIR 1969 SC 53: (1969 Cri, L.J 279) it has been held that one of the formalities that has to be observed in searching a person is that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused.
8. Further more, PW1 Ct. Manoj had alleged that the accused and the plastic katta containing illicit liquor was handed over to IO/ASI Desh Raj. IO took out one half bottle as sample and sealed the same. He seized the remaining case property vide seizure memo Ex. PW1/C. Interestingly, no handing over memo regarding the handing over of the seal was prepared by the IO which creates doubt as to whether the seal was handed over actually by the IO to Ct. Karlos Topo or it remained with the IO.
9. It is pertinent to note that the prosecution witnesses have contradicted themselves at various stages during their examination raising doubt in the credibility of the prosecution story. For instance, while PW1 in his cross examination dated 12.07.2017 stated that there was an assembly election in Delhi after FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 4 of 7 1-2 days from the date of incident, he again submitted that the assembly election had taken place on the date of incident itself. Again, while PW1 stated that he had signed the site plan as a witness, a careful perusal of the site plan Ex. PW1/B does not reflect PW1 as a witness. Infact, he himself admitted that there was no signature on the site plan when the same was shown to him during the stage of cross-examination. Again, while PW1 as well as PW6 submitted that no higher police officials or Additional SHO PS New Ashok Nagar and SHO PS Gazipur had come at the spot on the date of incident, PW3 in his cross-examination admitted that many police officials and higher officers were present at the spot including SHO PS New Ashok Nagar. PW7 in his cross- examination also admitted that on the next date of the incident, there was an assembly election and due to this reason, higher officers were patrolling on the date of incident. Thus, it is evident that the evidence of the prosecution witnesses is replete with contradictions. Again, interestingly, while PW1 and PW7 had admitted that the spot was the public place and that few public persons had gathered at the spot, in contradiction, PW6 in his cross-examination had stated that there was no public persons standing at the spot, when he reached there. While PW1 stated that he remained at the spot for about 15-20 minutes, PW6 in contradiction alleged that PW1 Ct. Manoj remained at the spot for about 2-21/2 hour. Again, while PW1 alleged that he went to patrolling in Mulla Colony from the spot and that IO Desh Raj Singh and Ct. Karlos Topo left the spot alongwith the accused at about 12.55 a.m., PW6 in contradiction alleged that PW1 Ct. Manoj left the spot with him at about 3-3.15 a.m. Thus, the depositions made by the prosecution witnesses are inconsistent and they raise serious doubt regarding the veracity of the prosecution FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 5 of 7 case.
10. The main defence that has been raised by the accused is that of false implication by the police officials and it is the case of the accused that he was not present at the spot on the day of incident. It has been further alleged by the accused in his statement u/s. 313 r/w 281 Cr.PC that he was lifted by the police officials from the gali in front of his house alongwith 25-30 more persons and were taken to PS Gazipur. It is further alleged that police officials booked 5 other persons under section 107 r/w 151 and the accused falsely in the present case with connivance of SHO PS Gaipur and new Ashok Nagar. The possibility of the above cannot be completely ruled out due to lacuna and lapses in the prosecution story. This being a criminal trial, even an iota of doubt would make the accused entitled to benefit of doubt as the primary burden lies on the prosecution to prove its case beyond all reasonable doubts. The accused in support of his allegations have also examined four other witnesses. PW3 in his cross-examination has admitted that the police had brought various persons of the locality in the PS, which corroborates the defence taken by the accused. DW1 has testified and corroborated the defence taken by the accused that on the date of incident, police persons misbehaved with him alongwith some other persons including the accused in the present case and that he has also given beating to his son namely Sunil Kumar. He has also alleged that Additional SHO PS New Ashok Nagar namely Vijay Kumar was also present at the spot and that the police officials have taken 20-25 persons gathered at the spot to the police station and that ASI Desh Raj has falsely implicated the present accused. He has also alleged that ASI Desh Raj has falsely implicated him, his son Sunil Kumar, her nephew Pintoo, Virender FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 6 of 7 Singh, Prem Pal and Rakesh u/s. 107/151 Cr.PC. The above witness has also furnished on record the casualty card alongwith audiology assessment of his son Sunil Kumar which is Mark DW1/A and Ex. DW1/B. The prosecution failed to impeach the credibility of the above witness at the stage of cross-examination. Accused has also examined DW2 HC Sanjiv who has furnished on record copy of DD No. 6-A dated 04.12.2013 which is Ex. DW2/A, in which the IO/ASI Desh Raj had arrested the alleged witnesses/persons u/s. 107/151 Cr.PC on the date of incident. The accused also examined SI Desh Raj as DW3 who furnished on record the arrest memos of the above persons which is Ex. DW3/C. He further examined Sunil Kumar as DW4, who further came on record and corroborated the case of the accused. All the above witnesses alongwith documentary evidences furnished on record strongly corroborate the defence raised by the accused and raised suspicion and doubt in the prosecution story.
11. In view of the above discussion, the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubts. I hereby give a benefit of doubt to the accused and accused is hereby acquitted for the offence u/s. 33 Delhi Excise Act. Case property is forfeited to the State and be destroyed as per rules after appeal.
File be consigned to Record Room after due compliance.
Pronounced in open Court on 20.12.2021.
Preeti Agarwala Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 519/2013 State Vs. Amilal PS Gaipur Page 7 of 7