Delhi District Court
Accused To Acquittal. It Has Been Held In ... vs State on 2 April, 2019
IN THE COURT OF MS. DEEPIKA SINGH,
METROPOLITAN MAGISTRATE-06, WEST, TIS HAZARI COURT
State v. Shankar
FIR No.84/18
PS Mundka
U/s 33 Delhi Excise Act
JUDGMENT
New Case No. : 5114/18
Date of Institution : 24.05.2018
Date of Commission of Offence : 24.02.2018
Name of the complainant : HC Kuldeep Singh
Name & address of the accused : 1) Shankar
S/o Suraja Ram
R/o Village-Kathuinya, Tehsil- Naiya,
PS Toynk, Rajasthan
Offence complained of : U/s 33 Delhi Excise Act
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of announcing of judgment : 02.04.2019
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment, this court shall decide the present case under Section 33 of Delhi Excise Act, 2009.
State v. Shankar U/s 33 of the Delhi Excise Act 1/14 FIR No.84/18 PS Mundka
2. The briefly stated story of the prosecution is that on 24.02.2018 at about 10.20 pm at Khasra no.84/15, Gali no.17, Netaji Subhash Vihar, Tikri Kalan, Delhi, accused Shankar was found in possession of illicit liquor as per seizure memo, which were seized without any permit or licence. Thus, the accused is alleged to have committed an offence under Section 33 of the Delhi Excise Act, 2009. FIR was lodged on the basis of rukka and investigation was carried out.
3. Charge sheet was filed against the accused Shankar in the court. Copy of charge-sheet and other relevant documents were supplied to the accused. Charge under Section 33 of the Delhi Excise Act was framed against the accused Shankar vide order dated 22.10.2018, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined four witnesses.
5. PW-1 HC Kuldeep deposed that on 24.02.2018, he was posted at PS Mundka as HC. On that day he was on patrolling duty alongwith Ct. Ajit in beat no. 8. At about 10.10 PM, while patrolling, when they reached at State v. Shankar U/s 33 of the Delhi Excise Act 2/14 FIR No.84/18 PS Mundka Gali no. 17, Netaji Subhash Vihar, Tikri Kalan, he met one secret informer who informed him that one person is selling illicit liquor while sitting on a cot outside his house situated at Khasra no. 84/15, Gali No. 17, Netaji Subhash vihar, Tikri Kalan, Delhi. Thereafter, he asked 4-5 public persons to join the proceedings but they refused to join and went away without disclosing their names and identity. Thereafter, at about 10.20 PM they reached at Khasra no. 84/15, Gali No. 17, Netaji Subhash vihar, Tikri Kalan, Delhi and secret informer pointed out towards one person sitting on a cot outside his house and selling illicit liquor. Thereafter, he alongwith help of Ct. Ajit apprehended the said person who revealed his name as Shankar, who was present in the court on the day of his deposition and he was identified correctly by the witness. They found one Katta on the Cot containing illicit liquor and on checking they found three other Kattas underneath the Cot. Then they checked the Katta which was found lying on the Cot and on checking they found 37 quarter bottles of illicit liquor make Episode, 17 quarter bottles of Double Blue and 3 quarter bottles of Macdowles (for sale in Haryana Only). Thereafter, they took out one quarter bottles as sample from each brand. Thereafter, the remaining illicit liquor were kept in the said katta and gave it serial no. 1 and sample bottles were given as serial no. 1/1, 1/2 and 1/3. State v. Shankar U/s 33 of the Delhi Excise Act 3/14 FIR No.84/18 PS Mundka
6. Thereafter, we checked another Katta and found containing 64 quarter bottles of Asli Santra Masaledar Desi Sarab. They took out one sample quarter bottle and the remaining kept in the katta and given serial no. 2. The sample bottle was given serial no. 2/1.Thereafter, they checked third Katta and found containing 63 quarter bottles of Asli Santra Masaledar Desi Sarab. They took out one sample quarter bottle and the remaining kept in the katta and given serial no. 3. The sample bottle was given serial no. 3/1. Thereafter, they checked fourth Katta and found containing 13 Bear bottles of Haywards 5000 (for sale in Haryana Only). They took out one sample Bear bottle and the remaining kept in the katta and given serial no. 4. The sample bottle was given serial no. 4/1. Thereafter, they sealed the case property separately in the respective kattas with the seal of KS. Sample bottles were also sealed separately with the seal of KS. Seal after use was handed over to Ct. Ajit. Case property was taken into possession vide seizure memo Ex. PW1/A. Form M-29 was filled. He prepared rukka Ex. PW1/B and handed over to Ct. Ajit for registration of FIR. He went to PS and after registration of FIR came at the spot alongwith HC Manveer who conducted the further investigation of the case. He handed over the accused and case property to IO. Thereafter, he left the spot.
State v. Shankar U/s 33 of the Delhi Excise Act 4/14 FIR No.84/18 PS Mundka
7. Witness was cross examined by the ld. Defence counsel wherein he deposed that he left the PS at about 9 PM and he had not mentioned the Departure entry anywhere in the file. The place where they had received secret information was around 200 meter from the spot and was a residential area. He admitted that he did not ask any neighbor to join the investigation. He had asked some public persons to join the proceedings at the time of recovery of case property. He do not remember whether he had mentioned the fact that he had asked public persons to join the public persons at the time of recovery, anywhere in my statement. Ct. Ajit returned to the spot after getting FIR registered at around 12.45 AM. He had not prepared any document in absence of Ct. Ajit. He had prepared seizure memo of the case property before handing over rukka to Ct. Ajit. Second IO had mentioned the FIR no. on the seizure memo. Site plan was not prepared at his instance but it was prepared at the instance of Ct. Ajit. He had finally left the spot at around 1 AM. he received the seal after 15 days. No handing over memo of seal was prepared by him. He denied that the case property was planted upon accused in order to implicate him in this false case. He denied the State v. Shankar U/s 33 of the Delhi Excise Act 5/14 FIR No.84/18 PS Mundka suggestion that nothing was recovered from the accused. He denied the suggestion that he was deposing falsely.
8. PW2 ASI Narender had proved the FIR Ex. PW2/A and endorsement made thereupon Ex. PW2/B and certificate u/s 65 B Evidence Act Ex. PW2/C. Witness was not cross examined by the defence counsel despite grant of opportunity.
9. PW3 Ct. Ajeet deposed that on 24.02.2018, he was posted at PS Mundka as Ct. and on that day he was on patrolling duty alongwith HC Kuldeep in beat no. 8. At about 10.10 PM, while patrolling, when they reached at Gali no. 17, Netaji Subhash Vihar, Tikri Kalan, a secret information was passed that one person is selling illicit liquor while sitting on a cot outside his house situated at Khasra no. 84/15, Gali No. 17, Netaji Subhash vihar, Tikri Kalan, Delhi. Thereafter, HC Kuldeep asked 4-5 public persons to join the radding party but they refused to join and went away without disclosing their names and identity. Thereafter, at about 10.20 PM they reached at spot and secret informer pointed out towards one person sitting on a cot outside his house and selling illicit liquor. Thereafter, they apprehended the said person who revealed his name as Shankar, who State v. Shankar U/s 33 of the Delhi Excise Act 6/14 FIR No.84/18 PS Mundka was present in the court on the day of his deposition and was correctly identified by the witness. They found one Katta on the Cot containing illicit liquor and on checking we found three other Kattas underneath the Cot. There they checked the Katta which was found lying on the Cot and on checking we found 37 quarter bottles of illicit liquor, 17 quarter bottles of Double Blue and 3 quarter bottles of Macdowles (for sale in Haryana Only). Thereafter, they took out one quarter bottles as sample from each brand. Thereafter, the remaining illicit liquor were kept in the said katta and gave it serial no. 1 and sample bottles were given as serial no. 1/1, 1/2 and 1/3.
10. Thereafter, they checked another Katta and found containing 64 quarter bottles of Asli Santra Masaledar Desi Sarab. They took out one sample quarter bottle and the remaining kept in the katta and given serial no. 2. The sample bottle was given serial no. 2/1. Thereafter, they checked third Katta and found containing 63 quarter bottles of Asli Santra Masaledar Desi Sarab. They took out one sample quarter bottle and the remaining kept in the katta and given serial no. 3. The sample bottle was given serial no. 3/1. Thereafter, they checked fourth Katta and found containing 13 Bear bottles of Haywards 5000 (for sale in Haryana Only). They took out one sample Bear bottle and the remaining kept in the katta State v. Shankar U/s 33 of the Delhi Excise Act 7/14 FIR No.84/18 PS Mundka and given serial no. 4. The sample bottle was given serial no. 4/1. Thereafter, they sealed the case property separately in the respective kattas with the seal of KS. Sample bottles were also sealed separately with the seal of KS. Seal after use was handed over to him. Case property was taken into possession vide seizure memo already Ex. PW1/A . Form M-29 was filled. IO prepared rukka and handed over to him for registration of FIR. He went to PS and after registration of FIR came at the spot alongwith HC Manveer who conducted the further investigation of the case. HC Kuldeep handed over the accused and case property to IO. The accused was arrested vide arrest memo EX. PW3/A and his personal search was taken vide memo EX PW3/B. His statement was recorded.
11. The witness was cross examined by the ld. Defence counsel wherein he deposed that The place where they had received secret information was around 200 meter from the spot and was a residential area. They admitted that IO did not ask any neighbor to join the investigation. IO had asked some public persons to join the proceedings at the time of recovery of case property. No written notice was given to the person who refuse to join. No handing over memo of seal was State v. Shankar U/s 33 of the Delhi Excise Act 8/14 FIR No.84/18 PS Mundka prepared by IO. He denied the suggestion that the case property was planted upon accused in order to implicate him in this false case. He denied the suggestion that nothing was recovered from the accused.
12. PW4 Ct. Sudhir deposed that on 14.03.2018 he was handed over 6 sample bottle form M-29 seal with the seal of "KS" vide RC no. 55/21 by MHC(m) for depositing the same at Excise office. He deposited the same accordingly and returned the copy of RC to MHC(M). Till the sample remain in his possession the same was not tampered with. Witness was not cross examined by the Ld. Defence counsel despite grant of opportunity.
13. Thereafter, the prosecution evidence was closed. Statement of accused was recorded wherein he denied all the allegations and pleaded innocence. No defence evidence was led by the accused.
14. I have heard the submissions addressed by the Learned APP for state and by the Learned Counsel for accused and carefully perused the record.
State v. Shankar U/s 33 of the Delhi Excise Act 9/14 FIR No.84/18 PS Mundka
15. Learned Defence Counsel has submitted that the accused has been falsely implicated in this case. No public person was joined in the investigation despite availability.
16. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefits of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. It has been held in case of "Sadhu Singh V/s State of Punjab" 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court :-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. 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."
17. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as State v. Shankar U/s 33 of the Delhi Excise Act 10/14 FIR No.84/18 PS Mundka under:-
"22.49. 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."
18. In the present case, the above said provision have not been complied with by prosecution. The relevant entries regarding the arrival and departure of the police official has not been proved on record. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal V/s State" 1987 (2) Crimes 29 wherein it was held by the Hon'ble High Court of Delhi, "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 State v. Shankar U/s 33 of the Delhi Excise Act 11/14 FIR No.84/18 PS Mundka entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
19. Also, no Public person has been made as a witness in the present case. Admittedly, the spot was a public area and public persons were present at the spot, however, no sincere efforts was made by the IO to persuade them to join the investigation. No notice was served upon the said witnesses. It has been held in "Roop Chand V/s The State of Haryana",1999 (1) C.L.R 69, by the Hon'ble Punjab & Haryana High Court that:-
"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 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 State v. Shankar U/s 33 of the Delhi Excise Act 12/14 FIR No.84/18 PS Mundka under the law. Had it been a fact that he 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 of credence. All these facts taken together make the prosecution case highly doubtful''.
20. Another lacuna in the prosecution case relates to seal. Prosecution case is that the case property was sealed by IO with the seal of KS and handed over to Ct. Ajeet. However, no handing over memo was prepared. Also, the seal was neither handed over to independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
21. In view of the above discussion, court is of the considered opinion that story of the prosecution has become doubtful and the benefit of doubt certainly goes in favour of the accused. The prosecution has failed to prove its case beyond all reasonable doubts against the accused. Accordingly, taking into consideration the facts and circumstances of the State v. Shankar U/s 33 of the Delhi Excise Act 13/14 FIR No.84/18 PS Mundka case, accused Shankar is acquitted for the charges punishable U/s 33 of Delhi Excise Act levelled against him.
22. As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.20,000/- with one surety of like amount.
23. File be consigned to the record room after due compliance.
DEEPIKA Announced in open court on 02.04.2019. SINGH Digitally signed by Certified that this judgment contains (Deepika Singh) DEEPIKA SINGH 14 pages and each page bears MM-06, (West) Date: 2019.04.03 17:36:57 +0530 my signature. THC, Delhi State v. Shankar U/s 33 of the Delhi Excise Act 14/14 FIR No.84/18 PS Mundka