Delhi District Court
State vs . : Sunil Pathak & Anr. on 18 February, 2020
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 190/16
P.S. : Sunlight Colony
u/s : 33/38/52 Delhi Excise Act, 3/181 and 5/180 MV Act
State Vs. : Sunil Pathak & Anr.
a. The Sl. No. of the case : 603/18
b. The date of commission of offence : 18.04.2016
c. The date of Institution of the case : 31.01.2018
d. The name of complainant : Ct. Chandar Shekhar
e. The name of accused : 1. Sunil Pathak
s/o Anand Pathak
r/o Sec - 37, Adangpur Dairy,
PS Sarai Khwaja, Faridabad,
Haryana
And
2. Sonu Behal
s/o Suraj Kishan Behal
r/o 435/2, West Guru Angad
Nagar, Laxmi Nagar, Delhi
f. The offences complained of : 33/38/52 of Delhi Excise Act,
3/181 and 5/180 MV Act
g. Charges framed under sections : Upon accused Sunil Pathak
u/s. 33/38/52 of Delhi Excise
Act and 3/181 MV Act
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 1 of 18
Upon accused Sonu Behal u/s.
33/38/52 of Delhi Excise Act
and 5/180 of MV Act
h. The plea of accused persons : Pleaded not guilty
i. Arguments heard on : 11.02.2020
j. The final order qua both accused : Accused Sunil Pathak is
persons convicted u/s. 33/52 of Delhi
Excise Act and 3/181 MV Act
and he is acquitted u/s. 38 of
Delhi Excise Act
Accused Sonu Behal is
acquitted u/s. 33/38/52 of
Delhi Excise Act and 5/180 of
MV Act
k. The date of judgment : 18.02.2020
JUDGMENT
1. Accused Sunil Pathak was found in possession of 24 petties (with 48 quarters each) of liquor make Naina Praimum Whiskey Rock and Strom Bottles Pvt. Ltd. Chandigarh for sale in Arunachal Pradesh. This recovery was effected from a vehicle make TATA Indigo bearing no. HR 55AT 2001 on 18.04.2016 at about 04:50 AM near bridge towards ITO road, Sarai Kale Khan, New Delhi within the jurisdiction of PS Sunlight Colony. As per the prosecution, this FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 2 of 18 vehicle was being driven by accused Sunil Pathak without permit or license to posses the same. Thus, accused has violated sections 33/38 read with section of Delhi Excise Act ['The Excise Act'] and 3/181 of M.V. Act.
2. Prosecution claims that as per police investigation, this vehicle was belonged to accused Sonu Behal and therefore apart from accused Sunil Pathak, accused Sonu Behal had also violated section 33/38 read with section 52 of Delhi Excise Act. It is further alleged that accused Sonu Behal (being owner of the aforesaid car) had handed over the said vehicle to accused Sunil Pathak which he was driving without license at the time of the incident and thus, he is also alleged to have violated section 5/180 M.V. Act.
3. Prosecution has accordingly filed chargesheet against accused Sunil Pathak and Sonu Behal. They were accordingly charged as per law of the said offences. It may be noted that at the time of framing of charge it appears that inadvertently, due to a typing error, the number of petties / boxes recovered from the vehicle of accused Sunil Pathak was mentioned as 18 instead of 24. At no stage of trial, the said typographical error was pointed out by the accused. It appears that no prejudice is caused to either of the accused in this regard because of the said mistake.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 3 of 18
4. Now, in support of the said charge, prosecution has produced the following witnesses:
Sr. Witness Nature of deposition / documents produced / proved No. Description i PW1 Ct. He is the complainant in this case. He deposed that on Chandar 18.04.2016, he alongwith Ct. Satender was on patrolling duty Shekhar on QRT Gypsy at Ring road, fly over Sarai Kale Khan. He claims that they saw one car bearing no. HR 55K 2001 was coming from the side of Sarai Kale Khan and going towards ITO. Thereafter, they signaled to stop the said car and on checking it, 06 petties of illicit liquor with 48 quarters in each petty were found kept on the rear seat of said vehicle. While checking the dickey, 18 petties of illicit liquor with 48 quarters in each petty were found kept in the dickey of the said car. Thereafter, he gave the information to PS and later SI Bengali Babu alongwith Ct. Sonu reached the spot. He handed over the accused Pathak and recovered case property to said SI Bengali Babu.
ii PW2 ASI This witness was present with the complainant on the day of Satender the incident with him. He deposed on same lines as PW1.
iii PW3 This witness is the IO of the case who carried out part
Retired SI investigation in this case.
Bengali Babu
iv PW4 HC This witness is the subsequent IO of this case who carried out
Neeraj Kumar further investigation in this case.
Prosecution also relied upon following documents details of which are as under :
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 4 of 18 Sl. no. Description of document(s) Exhibit(s) number given
1. Complaint of PW1 Ex.PW1/A
2. Seizure memo of case property Ex.PW1/B
3. Case property i.e. 24 plastic bags Ex.P1 (colly.)
4. Car bearing no. HR 55KT 2001 Ex.P2
5. Form no. M 29 Ex.PW3/A
6. Rukka Ex.PW3/B
7. Disclosure statement Ex.PW4/A
8. Arrest memo Ex.PW4/B
9. Personal search memo Ex.PW4/C
10. Site plan Ex.PW4/D
11. Seizure memo of liquor in question Ex.PW4/E
12. Application to RTO Gurgaon Haryana for Ex.PW4/F verification of ownership
13. Certified copy of details / document provided by Ex.PW4/G RTO, Gurgaon
14. Notice u/s. 41(1) A CrPC Ex.PW4/H Both the accused have also admitted the following documents :
1. Excise report dated 09.05.2016 Ex.PAX (running into 02 pages)
2. FIR (without contents) registered in the present case Ex.PA1
3. DD no. 6 dated 18.04.2016 Ex.PA2
5. All the said witnesses were duly examined on behalf of the State and crossexamined [by the Ld. APP for State, where necessary and also by the counsel for the accused person(s)].
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 5 of 18
6. After closure of prosecution evidence, statement of accused persons were recorded separately u/s. 313 CrPC in which they stated that they have been falsely implicated in the present case.
7. Accused Sonu Behal in his aforesaid statement also claimed that he had already sold the vehicle to Neeraj Malhotra and Faizan in 2015 itself and this fact was told to the police also. He further claimed that he was neither in possession of the said vehicle on the date of incident nor had he given the said vehicle to accused Sunil Pathak. He further claimed that the relevant delivery receipts as well as copy of passports of the said persons were also given to the police but the police did not investigate the case properly and have wrongly implicated him. He further claimed that the said Neeraj Malhotra and Faizan failed to get the said vehicle transferred in their name.
8. Accused Sonu Behal availed the opportunity to lead defence evidence and he himself had stepped in the witness box as DW1. He deposed that he had sold the vehicle in question bearing no. HR 55KT 2001 Model - January 2010, Make Tata Indigo to Neeraj Malhotra on 10.06.2015 and he has received delivery receipt dated 10.06.2015 Ex. DW1/1. He further deposed that he has also taken photocopy of passport Ex. DW1/2 and Adhar Card of Neeraj Malhotra Ex. DW1/3 when he sold his vehicle to the said person. He further deposed that he has also taken photocopy of Mohd.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 6 of 18 Faizan Ex. DW1/4 who was the witness at the time of sale of vehicle. He further deposed that he has also handed over the copies of the exhibits to the IO when he joined the investigation. No other witness was produced by accused Sonu Behal except himself. This witness was duly crossexamined by the Ld. APP for State.
9. As far as accused Sunil Pathak is concerned, he simply denied the incriminating evidence put to him u/s. 313 CrPC and thereafter did not avail the opportunity to lead defence evidence.
10.Thus, defence evidence stood closed and matter reached the stage of final arguments.
11.Arguments heard. Record perused.
12.It is the case of the prosecution herein that accused Sunil Pathak was driving a TATA Indigo car bearing no. HR 55AT 2001 on 18.04.2016 from which recovery of 24 petties with 48 quarters each was made. Now, as far as accused Sonu Behal is concerned, he has faced trial on the allegation that he is the owner of the said car and thus in such capacity u/s. 52(2) of the Excise Act there is a presumption of guilt against the owner of the vehicle being used for committing offence made punishable u/s. 33 of the Excise Act. The accused Sonu Behal is also claimed to have caused the driving of the vehicle in question by accused Sunil Pathak without accused FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 7 of 18 Sunil Pathak having any driving license. Thus, he is charged u/s. 5/180 of M.V. Act also.
13.Now, as far as the aforesaid presumption u/s. 52(2) of Delhi Excise Act is concerned, before such a presumption can be raised against accused Sonu Behal under the aforesaid sections, it was for the prosecution to show that Sonu Behal is the actual owner of the vehicle. In this regard, IO had obtained the certified copy of the registration certificate of the car in question from RTA, Gurgaon as per which the vehicle in question is registered in the name of accused Sonu Behal. But, at this stage, it may be noted that as per the testimony of the IO / PW4 / HC Neeraj Kumar, when accused Sonu Behal was interrogated by him, he had disclosed that said vehicle was sold by him to one Neeraj Malhotra. He claimed that apart from the said disclosure, he did not produce any other particulars of Neeraj Malhotra. Now, accused Sonu Behal had himself stepped in the witness box and had produced the delivery slip dated 10.06.2015 Ex.DW1/1 alongwith photocopy of passport of Neeraj Malhotra to show that the vehicle in question had already been sold by him much prior to the date of alleged offence on 18.04.2016. As per the IO, the said documents were never supplied to him. In my opinion, if the accused could produce a delivery receipt showing that the vehicle in question was sold by him on 10.06.2015 before court and this fact qua the sale of the vehicle in FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 8 of 18 question was told to the IO then, there is no ground to believe that the said documents must have not been shown to the IO at the time of investigation. It appears that possibly the accused Sonu Behal had not only disclosed about the sale of vehicle to one Neeraj Malhotra at the time of investigation but may have even given documents produced in his defence to the IO. In my opinion, it was for the IO to have actually found out the particulars of Neeraj Malhotra as not only this court but also the Aadhar card of the said person was available with accused Sonu Behal. Had the IO made the effort to investigate the case on the basis of the disclosure made by accused Sonu Behal qua transfer of ownership by accused Sonu Behal to one Neeraj Malhotra, possibly the IO would have been able to find that the actual owner of the vehicle on the date of the offence was Neeraj Malhotra or some other person and not the accused Sonu Behal.
14.There is no explanation forthcoming from the state as to why such a course was not adopted by the state. Only because a presumption of guilt is raised against the accused Sonu Behal, it shall not mean that the said presumption cannot be rebutted. In my opinion, accused Sonu Behal has, through his defence evidence, raised a probable defence to show that the vehicle in question had already been sold by him before the date of offence i.e. 18.04.2016. Nothing has come out from his crossexamination to disbelieve the said fact. Infact, the FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 9 of 18 IO / PW4 / HC Neeraj Kumar himself admitted during his examination in chief as well as during his crossexamination about the disclosure of accused Sonu Behal qua sale of vehicle in question to one Neeraj Malhotra. It appears that IO did not make any efforts to find out the particulars of the said Neeraj Malhotra. Even though, IO claimed that accused Sonu Behal did not produce any documents qua the sale, no notice u/s. 91 CrPC is on record to show that the IO had sought any such documents from accused Sonu Behal on the basis of disclosure made by him. Only because, today the IO has claimed in his evidence that accused did not produce any documents to indicate sale of vehicle to Neeraj Malhotra shall not absolve him of the legal obligation to serve a notice u/s. 91 CrPC on accused Sonu Behal for the production of sale documents in support of the said claim. In the absence of any such notice having been served by the IO of the case on accused Sonu Behal, no opportunity was granted to accused Sonu Behal by the IO for production of the said documents. The only opportunity was now available with the accused Sonu Behal qua production of the said documents at the stage of his evidence which was duly availed by accused Sonu Behal.
15.In my opinion, if I consider the aforesaid facts and the documents produced by accused Sonu Behal, it is possible that the vehicle in question was already sold by accused Sonu Behal to one Neeraj FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 10 of 18 Malhotra before the date of the alleged offence. If that be the case, the presumption raised u/s. 52(2) of Delhi Excise Act is rebutted and it cannot be said that accused Sonu Behal had actually caused the transport etc. of the recovered liquor in this case.
16.Thus, in my opinion, with the presumption u/s. 52(2) of Delhi Excise Act being rebutted, it was for the prosecution to now show that infact, accused Sonu Behal was responsible for the transport of the liquor in question. That could have been done after finding out the status or role of Neeraj Malhotra. Nothing of the sought has been done by the prosecution and therefore, benefit of doubt shall have to be given to the accused Sonu Behal in this regard. I cannot persuade myself to say that accused Sonu Behal was the actual owner on the date of the alleged offence in view of the facts discussed above. Accordingly, he is acquitted for offence made punishable u/s. 33/38 of Delhi Excise Act read with section 52 of the said Act.
17.Similar logic shall apply qua section 5/180 M.V. Act also. If, it is taken that accused Sonu Behal had already sold his vehicle to Neeraj Malhotra before 18.04.2016, the question of him causing accused Sunil Pathak to drive the vehicle in question does not arise. Accordingly, accused Sonu Behal is also acquitted for offence made punishable u/s. 5/180 of M. V. Act.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 11 of 18
18.Now coming to the allegations against accused Sunil Pathak. This accused was found driving the vehicle in question and recovery of 24 petties of liquor with 48 quarters each was made from the vehicle being driven by him. To prove these facts, prosecution produced PW1 / Ct. Chandar Shekhar alongwith PW2 / ASI Satender who reiterated the facts that while they were checking vehicles at Sarai Kale Khan bus stand chowk on 18.04.2016 at about 04:50 AM, they saw the accused driving the aforesaid vehicle. They claimed that on checking the same, 06 petties of liquor was found between the rear and the front seat of the car in question and 18 petties of liquor was found in the dickey of the car in question. Thus, a total of 24 petties was recovered from the car in question. PW1 duly proved his complaint Ex.PW1/A which is in line with his testimony made before this court while deposing as PW1. The relevant seizure memos Ex.PW1/B and Ex.PW4/E of the liquor and the car in question have also been proved on record. The testimony of PW2 also corroborates the testimony of PW1.
19.Again, as per the chemical analysis report Ex.PAX, in each of the samples taken from the 24 petties, the test of ethyl alcohol had been returned positive. In other words, each of the samples had ethyl alcohol in them. The relevant form M - 29 Ex.PW3/A has also been proved on record by the prosecution.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 12 of 18
20.Again, soon after the incident, police of PS Sunlight Colony was intimidated about apprehension of accused Sunil Pathak and very soon IO SI Bengali Babu / PW3 (as he was then) reached the spot reached the spot and prepared the relevant seizure memos etc.
21.Now, as per the testimony of PW1, PW2 and PW3, they categorically identified the accused Sunil Pathak before this court as the person found in possession of the liquor in question. Each of the said witnesses have stood the test of crossexamination and have reiterated the facts and the chain of incidents which occurred on the day of the incident. The said witnesses were thoroughly cross examined by counsel for the said accused but nothing has come in the crossexamination of the said witnesses to disbelieve their testimony. Neither the said witnesses had known the said accused persons prior to the incident nor had any prior enmity with his to falsely implicate the accused Sunil Pathak. The witnesses have stood the test of crossexamination and their testimony corroborate each other which also inspire the confidence of this Court and is believable.
22.It was argued by the counsel for the accused that when the liquor in question Ex.P1 was produced before this court, out of the 24 plastic bags (having liquor of each of the 24 petties recovered in this case), FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 13 of 18 02 plastic bags were found in unsealed condition and 03 plastic bags had their seals broken. He argued that thus only 19 bags were found to be properly sealed while the other bags did not have proper seals. It was his argument that considering the aforesaid bags, the recovery of case property in this case is doubtful and therefore, accused Sunil Pathak should be given benefit of doubt on that account.
23.I am not inclined to accept the said argument raised by the Counsel for the accused for the simple reason that even if only 19 petties were recovered from the accused from the car (presuming that the other five petties of liquor were not produced in sealed condition and therefore, the same are not proved as per law), still the accused shall have to explain his possession of this 19 petties of liquor. The rigor of section 52(1) of Delhi Excise Act, 2009 qua presumption of guilt shall still operate against the accused as he is still required to account for the possession of the said 19 petties of liquor. Though, prosecution has claimed recovery of 24 petties of liquor from the accused, since the 05 petties of liquor were not produced in sealed condition, benefit of doubt qua only 05 petties of liquor can be given to the accused. But, he is still required u/s. 52(1) of Delhi Excise Act to explain his possession of other 19 petties of liquor.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 14 of 18
24.It may be noted that PW1, PW2 and PW3 have given the exact chain of events which transpired on the day of the event and have also categorically identified the accused Sunil Pathak as the person who was found in possession of the illicit liquor. The said liquor was produced before the court (19 petties in sealed condition) and has also been placed on record by the prosecution. The identity of the said vehicle i.e. HR 55AT 2001 is also proved on record as the said car was produced in court as Ex.P2. The exhibition of the said car was objected to at the time of evidence by the counsel for the accused Sonu Behal on the ground that the seizure memo of the said car had not been proved by that time. The seizure memo of the car was eventually proved by the prosecution through PW4 and the document i.e. seizure memo was eventually exhibited as Ex.PW4/E and therefore, the objection raised by counsel for accused Sonu Behal at the time of recording of evidence of PW1 does not survive.
25. Simply put, the identity of vehicle was duly proved on record by the prosecution. Again, as already noted, the samples taken from the liquor seized from the accused were found to contain ethyl alcohol (see Ex.PAX). Again, as per testimony of PW1 and PW2, the liquor seized from the accused was meant for sale in Arunachal Pradesh only (see Ex.PW1/B). Thus, such liquor could not have been possessed by the accused in Delhi. The quantity found in possession of the accused i.e. 19 X 48 = 912 quarters of liquor rules FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 15 of 18 out the possibility of possession of the said liquor for personal consumption. That is day beyond the prescribed limit of possession of whiskey i.e. 09 litres (as mandated under rule 20 of Delhi Excise Rules, 2010). The quantity of liquor recovered from the accused is being treated qua 19 petties only as the other 05 petties were produced before the court in unsealed condition. The quantity of liquor shows that the said liquor was being possessed by the accused in violation of section 33 of the Excise Act without any notification / permit etc. being in his possession qua the same. Yet again, accused Sunil Pathak did not give any explanation qua any possession and the presumption of his guilt raised u/s. 52(1) of the Excise Act also operates against him which has not been rebutted by him either through independent evidence or during cross examination of the prosecution witnesses.
26. In my opinion, if I take a holistic view of the evidence, the evidence of PW1, PW2 and PW3 read with the other documentary evidence on record is sufficient to convict the accused Sunil Pathak herein u/s. 33 of the Excise Act for possessing 19 petties of illicit liquor in the car being driven by him bearing no. HR 55AT 2001. It is ordered accordingly.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 16 of 18
27. As far as offence u/s. 38 Delhi Excise Act is concerned, none of the witnesses produced by the prosecution claimed that the liquor found in possession of the accused Sunil Pathak was unlawfully imported or transported or manufactured or the accused had the knowledge qua non payment of prescribed duty thereupon. It appears that prosecution has majorly relied upon the evidence of PW1 and PW2 to show possession of liquor with the accused in contravention of section 33 of Delhi Excise Act only. Only because the liquor in this case had a noting that the same was for sale in Arunachal Pradesh cannot mean that the same has been unlawfully imported or transported or prescribed duty not paid thereupon. Such nothing raises a strong suspicion in that direction but in order to return a conviction u/s. 38 of Delhi Excise Act, it was for the prosecution to show that the possession of the accused was with the knowledge that the liquor has inter alia been imported or transported unlawfully or with the knowledge that the prescribed import duty has not been paid on the said liquor. With the prosecution witnesses being silent on the aforesaid facts, it is difficult to see as to how knowledge can be attributed to the accused qua the unlawful import or transportation of the liquor in question. In my opinion, since the prosecution witnesses has not spoken anything about the ingredients contained in section 38 of Delhi Excise Act, accused is entitled to be acquitted u/s. 38 of Delhi Excise Act. It is ordered accordingly.
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 17 of 18
28. Again, as far as the allegation u/s. 3/181 of M.V. Act is concerned, PW4 / HC Neeraj Kumar claimed that despite request, accused Sunil Pathak could not produce any valid driving license for driving the vehicle in question. As per testimony of PW1 and PW2, accused Sunil Pathak was found driving the vehicle in question. Nothing has come out from the crossexamination of the witnesses to disbelieve the fact that the accused had driven the vehicle in question without any license. Even the accused has not placed on record any license to show that he was having a valid driving license from the date of offence. Thus, as per record, accused Sunil Pathak was driving the vehicle bearing no. HR 55AT 2001 without any license and accordingly, he is convicted for offence made punishable u/s. 3/181 of M.V. Act.
29. To come up for arguments on quantum of sentence.
Digitally signed by AASHISH AASHISH GUPTA
Announced in the Open GUPTA Date:
2020.02.18 Aashish Gupta
16:27:19 +0700
Court on 18th day of February, 2020 MM(South East)07
Saket, New Delhi
FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 18 of 18