Delhi District Court
State vs Anil Kumar Dixit on 11 March, 2015
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE - 04, ROOM NO.212
DWARKA, DELHI
State versus Anil Kumar Dixit
FIR No. 205/12
PS: Kapeshera
U/s-33 (F) Delhi Excise Act
1. Serial No. of the case : 02405R0120962013
2. Date of commission of offence : 02.12.2012
3. Name of the complainant : W/SI Vandana Rao
4. Name of the accused, and his : Anil Kumar Dixit, s/o Sh. Chander Bhan
parentage & residence Dixit, r/o H. No. 1041, Gali No. 24, Sangam
Vihar, New Delhi.
5. Date of Reserving Judgment : -
6. Date when judgment was : 23.03.2015
pronounced
7. Offence Complained of : Section 33 (F) Delhi Excise Act
8. Plea of accused : Pleaded not guilty.
9. Final Order : Acquittal
10. Date of Order : 23.03.2015
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Briefly stated, the case of the prosecution is that on 03.12.2012, at about 01.10 AM, at Dwarka Link Road, Farm House no. F-16, Golden Parking Out Gate, New Delhi, the accused was found in possession of 3 cartons (one carton containing Jonny Walker Gold Label Reserve Blended Scotch Whiskey 12 bottles of 750 ML each and two cartons containing 6-6 bottles each of 750 ML of Grey Goose Vodka distilled and bottled in France) which he was carrying in Corolla Toyota car bearing no. DL-4C-AE-1500. Hence, he was found to have committed an offence punishable under Section 33(f) of Delhi Excise Act, 2009 (hereinafter referred to as the Act).
State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 1 of 7
2. The investigation commenced on the information of W/SI Vandana Rao. FIR was registered. Thereafter, the investigation was completed and the charge sheet was filed under Section 33(f) of the Act on 01.04.2013. Cognizance was taken against the accused under Section 33(f) of the Act and provisions of Section 207 Cr.P.C. were complied with after appearance of the accused. After hearing, arguments, a Charge for the offence under Section 33(f) of the Act was framed on 06.06.2013 against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was put up for prosecution evidence.
3. Prosecution has examined eight witnesses namely PW1 W/SI Vandana Rao who is the complainant. PW2 Sh. Avinash proved the cash memo pertaining to the function being held at the spot. PW3 Ct. Praful and PW5 Ct. Pramod were members of the raiding team who were with the complainant. PW4 HC Rajpal is the DO. PW6 Ct. Jagdish was with the IO during the investigation of the present case. PW7 HC Narender is the MHCM. PW8 HC Birender Kumar is the IO. Thereafter, the statement of the accused u/s 313 CrPC was recorded on 06.01.2015. The accused chose not to lead any DE. Hence, DE was closed and final arguments were advanced by both the parties.
4. Ld. APP for the State addressed useful and pertinent arguments. It is argued that on 03.12.2012, at about 01.10 AM,, while PW1 W/SI Vandana Rao, PW3 Ct. Praful and PW5 Ct. Pramod were on their duty, they received a secret information regarding illicit liquor. They reached at Dwarka Link Road, Farm House no. F-16, Golden Parking Out Gate, New Delhi and checked the bar but did not find any illicit liquor. Then, PW5 Ct. Pramod saw that the accused had liquor with him in his car bearing no. DL-4C-AE-1500. On checking, 3 cartons (one carton containing Jonny Walker Gold Label Reserve Blended Scotch Whiskey 12 bottles of 750 ML each and two cartons containing 6-6 bottles each of 750 ML of Grey Goose Vodka distilled and bottled in France) (hereinafter referred to as "illicit liquor") were recovered from the said car, which the accused was carrying without any permit or license. Thereafter, they called at the PS and PW8 HC Birender Kumar and PW6 Ct. Jagdish reached at the spot for the investigation of the case. It is submitted by the Ld. APP that in view of the well-corroborated testimonies of PW1 W/SI Vandana Rao, PW3 Ct. Praful, PW5 Ct. Pramod, PW6 Ct. Jagdish and PW8 HC Birender Kumar, the recovery of the illicit liquor from the accused is proved beyond reasonable doubts.
State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 2 of 7 The Ld. APP also relies on the Excise Laboratory Report dated 02.01.2013 whereby the liquor as allegedly recovered from the possession of the accused has been tested. Vide the report, the samples were opined to be that of whiskey and vodka. The report is admissible in evidence under Section 293, CrPC.
5. Further it is submitted by the Ld. APP that by virtue of Section 52, Delhi Excise Act 2009, a presumption arises against the accused that he has committed the offence under Section 33, unless the contrary has been proved, if the accused is unable to account satisfactorily for the possession of the liquor. As no defence evidence has been led by the accused, it is submitted by the Ld. APP that the accused has failed to rebut this presumption. Hence, it is submitted that as the recovery has been proved and the accused could not present any cogent reason for possession of the illicit liquor, a presumption rises against the accused that he has committed the said offence.
6. On the other hand, the Ld. Counsel for the accused prays for acquittal of the accused stating that the prosecution has failed to prove its case beyond reasonable doubts. It is submitted that there are various contradictions in the testimonies of the relevant witnesses but most importantly, PW5 Ct. Pramod stated that at about 01.05 am, the impugned car came from inside the farmhouse. He stopped the said car and informed PW1 W/SI Vandana about the same. Then, the liquor was recovered from the dickey of the car. It is submitted that in a moving car, how could PW5 Ct. Pramod see the alleged liquor in a closed dickey. Hence, the case is not worthy to be relied upon. Further, she submits that no public person was joined in the investigation, despite a lot of persons available at the spot such as the guests, bartenders, waiters etc.
7. I have gone through the record. As pointed out by the Ld. Counsel for the accused, the fact that the liquor was found in dickey of the car. It is stated by PW5 Ct. Pramod in his cross- examination that he had seen the illicit liquor in the dickey of the car and then he stopped the car. This is factually impossible. The dickey of the car is opaque and without opening the same, it is impossible that the liquor could be seen. Hence, this version is highly suspicious. Further, as pointed out by the Ld. Counsel, no public person was asked by the IO to join the investigation. The accused was allegedly apprehended from a farmhouse where a function was going on and State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 3 of 7 lots of people were present there. No names of the public witnesses who were requested to join the proceedings are available on record. No public witnesses were given notices to join the proceedings. The police officials are entrusted with ample powers under the provisions of CrPC to initiate proceedings under Section 187, IPC if any person does not cooperate with him despite giving notice. No efforts by the IO are seen on the file for joining the public witnesses. It is well settled that non-joining of public witnesses shrouds doubt over the fairness of the investigation by police. Even Section 100(4) casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In this regard, cases titled as Narsi v. State of Haryana 1998 (4) Crimes 105 (SC), Ranjit v. State of Haryana 1995 (1) CC Cases 442 (HC) and Munni Lal v. The State 1995 JC 110 can be relied upon. Reliance on a judgment of the Hon'ble Supreme Court of India in State of Rajsthan v. Teja Singh 2001 (II) AD (SC) 125 is also relevant wherein it has been observed that:
"The failure of the prosecution to examine independent witnesses though available is fatal for their case."
8. Furthermore, it is argued by the Ld. Counsel for the accused that the prosecution has not proved the arrival or the departure entries of any of the officials and hence, this also vitiates the case of the prosecution. The arrival and departure entries of the police officials who apprehended the accused with case property is a vital piece of evidence. Conspicuously, no departure or arrival entries in the daily diary register of any of the witnesses is furnished and proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose of PPR Rules. It is apposite at this juncture to reproduce chapter 22 Rule 49 of of Punjab Police Rules, 1934, provided as 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 personality by signature or seal.
(ci) Note: The term police station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
9. Then, another point to which the attention of the court has been drawn by the Ld. Counsel is that as per the testimonies of the witnesses, the case property was seized and the FIR was State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 4 of 7 registered. However, the FIR no. is featured on the seizure memo Ex.PW1/A. Ex.PW1/A i.e seizure memo bears the FIR number and case details in the same ink in which the documents are prepared which indicates that the FIR number was inserted while preparing the documents. No explanation has been furnished on record as to how the FIR registration number has appeared on this document. It leads to the inference that either the document was prepared later or the FIR has been registered earlier in point of time. Both the situations create dents and leave unexplained holes in the prosecution story, the benefit of which must accrue to the accused. This court finds force from the judgments on the same point of law such as Zofar v. State, 2000 II AD (Del) 137; Prithvi Pal Singh @ Munna v. State 2000 [1] JCC (Del) 274; Md. Hashim v. State 1999 VI AD (Del) 569; Ashok Kumar v. State 2000 I AD (Del) 10 and Kailash @ Kuddu v. State of Delhi 2000 [1] JCC [Delhi] 162. It would be appropriate to reproduce the relevant extract from the case titled as Zofar v. State, 2000 II AD (Del) 137 wherein the Hon'ble High Court has held as under:
"Surprisingly, the secret information (Ex. P.W. 7/B), the notice under Section 50 of the Act (Ex. P.W. 4/A) and the Seizure Memo (Ex. P.W. 4/C) bear the number of the FIR (Ex. P.W. 1/B). The number of the FIR (Ex. P.W. 1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The Prosecution has not offered any Explanation whatsoever as to under what circumstances number of the FIR (Ex. P.W. 1/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the 'spot before registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W. 1/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
10. Furthermore, it must be noted that the investigation in the present case commenced on the basis of a secret information. However, this secret information was not reduced in writing nor the alleged secret informer was examined in the court. It has been held by the Hon'ble Delhi High court in Surender v. State MANU/DE/0873/2009 that:
"As indicated in Kanhai Mishra alias Kanhaiya Misar v. State of Bihar 2001 CriLJ 1259 , secret information alleged to have been received by an investigating officer without disclosing its source cannot be made the basis to prove a circumstance. In Bhugdomal Gangaram & Ors. v. State of Gujarat 1983 CriLJ 1276, the Supreme Court with regard to information, which the prosecution had received, observed as under:
State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 5 of 7 'But since the informant has not been examined as a witness, the evidence of P.W. 12 that he was informed that accused Nos. 3 and 4 would be coming behind the truck in a taxi is not admissible.' ... The secret informer has not been produced in court and, therefore, the secret information which forms the basis of such seizure is not admissible. "
11. Further, it is relevant to note here that PW6 Ct. Jagdish, in his statement had stated that he had taken samples from the MHCM vide RC no.227/21/12. However, neither the same had been produced nor proved on record. In this regard, case titled as Safiullah v. Delhi Administration 1993 JC 33 (Del) can be relied upon, wherein it has been held by the Hon'ble High Court of Delhi that:
"According to Form no. 10.17 of the Punjab Rules Vol.1 regarding road certificate at pages no. 166-167, it is clearly mentioned that all the articles taken from the police station are to be separately and clearly mentioned in such certificate. In the case in hand, the road certificate was neither produced nor exhibited, therefore, in the absence if the road certificate, it is also not clear whether the CFSL Form was ever taken out from the Malkhana and sent along with the sample to the CFSL office."
12. Furthermore, in the present case, the FIR was registered on the complaint of PW1 W/SI Vandana and she is also the first IO of the case. This is a glaring irregularity in the investigation of the case. As per the case of the prosecution, the recovery was a chance recovery. On the recovery, PW1 W/SI Vandana was very much entitled to prepare the tehrir and send the same to the PS for registration of the FIR. However, she should have stopped there. She could not assume the role of the IO and the complainant at the same time. She prepared the tehrir and also seized the case property vide seizure memo Ex.PW1/A, which is the prerogative of only the IO. In this regard, case titled as Munesh Kumar v. State 2011 (2) Crimes 626 can be relied upon wherein it has been held by the Hon'ble High Court of Delhi that:
"Munshi Ram SI is the author of rukka/complaint which formed basis for registration of FIR. Despite that the investigation of the case was entrusted to SI Munshi Ram. Above procedure adopted by the police, to my mind, is unfair and against the principle of natural justice. The purpose of the investigation is to inquire into the correctness of the allegations made in the complaint. When a complainant is entrusted State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 6 of 7 with the responsibility of investigation into allegation, as per the natural course of human conduct, he is not expected to conclude against the allegation in the complaint. This infirmity in the investigation further compounds the doubt against the prosecution case, particularly, in view of the fact that there is no other witness to corroborate the version of the Investigating Officer/Raid Officer SI Munshi Ram that the Appellants were planning to commit dacoity."
13. In view of the above discussion, considering the facts that no public witness was joined in the investigation despite their availability, absence of the DD entries, the existence of the FIR no. on the seizure memo and the non-examination of the secret informer, a doubt is cast on the prosecution story and falters it. In view of the same, the prosecution has failed to prove beyond reasonable doubts that the illicit liquor was recovered from the possession of the accused only. As the fact of recovery itself has not been proved satisfactorily, Section 52, Delhi Excise Act does not come into play.
ANNOUNCED IN THE OPEN COURT ON 23.03.2015 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Anil Kumar Dixit FIR no. 205/12 PS Kapashera Page 7 of 7