Delhi District Court
State vs Rajni on 18 December, 2024
IN THE COURT OF MS. JYOTI NAIN
JUDICIAL MAGISTRATE FIRST CLASS-07: ROHINI COURTS: DELHI.
FIR No. 438/2020
U/s 33 of Delhi Excise Act
PS: Swaroop Nagar
State vs. Rajni W/o Tara Chand
Date of Institution of case:-06.09.2021
Date of Judgment reserved:-18.12.2024 (at 12:30 pm)
Date on which Judgment pronounced:-18.12.2024 (at 03:15 pm)
JUDGMENT
Case Number : 7466/2021
CNR Number : DLNT020109832021
Date of Commission : 13.09.2020
of offence
Name of the : Ct. Shiv Kumar, No. 2020/OND
complainant
Name and address of : Rajni W/o Sh. Tara Chand, r/o House No.705, Gali
the accused No.7, E Block, Keshav Nagar, Swaroop Nagar, Delhi.
Offence complained : 33 of Delhi Excise Act
of
Plea of accused : Not guilty
Final Order : Acquitted
JYOTI Digitally signed
by JYOTI NAIN
Date: 2024.12.18
NAIN 18:06:17 +0530
FIR No. 438/2020 State vs. Rajni 1 of 12
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 13.09.2020, at about 10:15 pm, at Shamshan Ghat, in front of Ibrahimpur, Delhi within the jurisdiction of Police Station Swaroop Nagar, accused was found in possession of 01 plastic katta containing 100 quarter bottles of illicit liquor make ADS Asli Masaledar Desi Sharab for Sale in Haryana Only without any permit or license. Thus, according to prosecution, accused committed an offence punishable under Section 33 of The Delhi Excise Act, 2009. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 33 of the Delhi Excise Act, 2009 of the prescribed duty.
3. Copy of charge sheet and annexed documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused was framed under section U/s 33 of the Delhi Excise Act, 2009 by the Ld. Predecessor, vide order dated 22.09.2022. Thereafter, accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined four witnesses.
6. PW1 W/HC Sunita, No.1677, PS Bawana.
He deposed, that on 13.09.2020, she was posted at PS Swaroop Nagar as Constable. On that day, he was present in PS and IO/HC Vishal received DD entry no.91/A regarding recovery of illicit liquor from a lady. She alongwith IO reached on the spot i.e. in front of shamshan Ghat, Village Ibrahimpur, Swaroop Nagar, where Ct. Shiv Kumar was present who produced a lady and one plastic katta. IO gave FIR No. 438/2020 State vs. Rajni 2 of 12 custody of lady namely Rajni to me. IO asked 3-4 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO checked the katta and found 100 quarter bottles of illicit liquor of make ADS Asli Santara Masaledar Desi Sharab for Sale in Haryana only.
IO took out 01 quarter bottle as a sample and put remaining quarter bottles in plastic katta and sealed with the seal of VS. IO prepared pullanda of 01 sample quarter by putting them into polythene and affixed sealed with the seal of VS. Thereafter, IO put remaining quarter bottles in plastic katta and seized the same with the help of white cloth. IO affixed the seal VS on the parcel. IO gave sr. no. s1 to sample and s2 to parcel. IO filled M29 form at the spot.
After use, IO handed over the seal to Ct. Shiv kumar. IO seized illicit liquor vide seizure memo which is Ex.PW1/A, bearing her signature at point A. After that, IO recorded statement of Ct. Shiv Kumar and prepared rukka and handed over the same to Ct. Shiv Kumar for registration of FIR.
After sometime Ct. Shiv Kumar came on the spot and handed over original rukka alongwith copy of FIR to IO. IO prepared site plan, which is Ex.PW1/B, bearing her signature at point A. IO recorded disclosure statement of accused vide disclosure memo, which is Ex.PW1/C, bearing her signature at point A. IO served notice u/s 41A to accused and released her on bail. She alongwith IO, Ct. Shiv Kumar having case property came to PS where IO deposited case property in malkhana. IO recorded her statement u/s 161 Cr.P.C.
This witness was duly cross-examined by Ld. Defence Counsel.
7. PW2 is HC Shiv Kumar, No.765/NW, PS Bharat Nagar.
He deposed that on 13.09.2020, he was posted at PS Swaroop Nagar as Constable. On that day, he left the PS for patrolling in beat No.7. During patrolling, at about 10:15 pm, he reached near Shamshan Ghat, Village Ibrahimpur, Swaroop Nagar, Delhi, where he saw that one lady having plastic katta was coming. On seeing him in uniform, she turned back and start walking with fast step. On suspicion, he FIR No. 438/2020 State vs. Rajni 3 of 12 stopped her and asked about the plastic katta but she could not give the satisfactory answer. He checked the plastic katta and the plastic katta was found containing of illicit liquor. On inquiry, accused had revealed her name as Rajni. He gave the information regarding the recovery of the illicit liquor in the PS. After some time, IO/HC Vishal and W/Ct. Sunita came on the spot. He produced accused and one plastic katta to the IO. IO gave custody of lady namely Rajni to W/Ct. Sunita.
IO asked 3-4 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO recorded his statement which is Ex.PW2/A, bearing his signature at point A. IO checked the katta and found 100 quarter bottles of illicit liquor of make ADS Asli Santara Masaledar Desi Sharab for Sale in Haryana only.
IO took out 01 quarter bottle as a sample and put remaining quarter bottles in plastic katta and sealed with the seal of VS. IO prepared pullanda of 01 sample quarter by putting them into polythene and affixed sealed with the seal of VS. Thereafter, IO put remaining quarter bottles in plastic katta and seized the same with the help of white cloth. IO affixed the seal VS on the parcel. IO gave sr. no. s1 to sample and s2 to parcel. IO filled M29 form at the spot.
After use, IO handed over the seal to him. IO seized illicit liquor vide seizure memo which is already Ex.PW1/A, bearing his signature at point B. After that, IO prepared rukka and handed over the same to him for registration of FIR. He went to PS where he handed over original rukka to DO, DO handed over me copy of FIR and original rukka.
After sometime he came back at the spot and handed over original rukka alongwith copy of FIR to IO. IO prepared site plan at his instance, which is already Ex.PW1/B, bearing his signature at point B. IO recorded disclosure statement of accused vide disclosure memo, which is already Ex.PW1/C, bearing his signature at point B. IO served notice u/s 41A to accused and released her on bail. He alongwith IO, W/Ct. Sunita having case property came to PS where IO deposited case property in malkhana. IO recorded his supplementary statement.
FIR No. 438/2020 State vs. Rajni 4 of 12 This witness was duly cross-examined by the Ld. Defence Counsel.
8. PW3 is ASI Vishal, No. 915/OND, PS Alipur He deposed that on 13.09.2020, he was posted at PS Swaroop Nagar as Head Constable. On that day, he was present in PS and received DD entry no.91/A regarding recovery of illicit liquor from a lady. He alongwith W/Ct. Sunita reached on the spot i.e. in front of shamshan Ghat, Village Ibrahimpur, Swaroop Nagar, where Ct. Shiv Kumar was present who produced a lady and one plastic katta. I gave custody of lady namely Rajni to W/Ct. Sunita. I asked 3-4 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. I checked the katta and found 100 quarter bottles of illicit liquor of make ADS Asli Santara Masaledar Desi Sharab for Sale in Haryana only.
I took out 01 quarter bottle as a sample and put remaining quarter bottles in plastic katta and sealed with the seal of VS. I prepared pullanda of 01 sample quarter by putting them into polythene and affixed sealed with the seal of VS. Thereafter, I put remaining quarter bottles in plastic katta and seized the same with the help of white cloth. I affixed the seal VS on the parcel. I gave sr. no. s1 to sample and s2 to parcel. I filled M29 form at the spot, which is Ex.PW3/A bearing his signature at point A. After use, I handed over the seal to Ct. Shiv kumar. I seized illicit liquor vide seizure memo which is already Ex.PW1/A, bearing his signature at point C. After that, I recorded statement of Ct. Shiv Kumar and prepared rukka which is Ex.PW3/B bearing his signature at point A and handed over the same to Ct. Shiv Kumar for registration of FIR.
After sometime Ct. Shiv Kumar came on the spot and handed over original rukka alongwith copy of FIR to him. I prepared site plan, which is already Ex.PW1/B, bearing her signature at point C. I recorded disclosure statement of accused vide disclosure memo, which is already Ex.PW1/C, bearing his signature at point A. I served notice u/s 41A to accused and released her on bail. I alongwith FIR No. 438/2020 State vs. Rajni 5 of 12 police staff having case property came to PS where he deposited case property in malkhana. He recorded statement of witnesses.
He further deposed that on 25.09.2020, he directed Ct. Sachin to deposit case property with Excise Office, ITO. Ct. Sachin came back in PS and informed him about deposit of case property. He recorded statement of witnesses.
This witness was duly cross-examined by the Ld. Defence Counsel.
9. PW4 is Ct. Sachin, No. 2562/OND, PS Alipur.
He deposed that on 25.09.2020, he was posted in PS Swaroop Nagar as Constable. On the instruction of IO HC Vishal Sharma, he collected Sealed sample and deposited the same at Excise office ITO Delhi vide road RC No.105/21/20, which is already exhibited as Ex.4/A. After deposit case property with Excise office, he came back to PS where he deposited receipt in malkhana. IO recorded his statement. Till the sample of the case property remained in his possession, no tampering was done with the sample.
This witness was duly cross-examined by the Ld. Defence Counsel.
10. Perusal of record shows, that statement of accused was also recorded under section 294 Cr.P.C in which the accused has admitted the document i.e. Registration of FIR No.438/20 which is Ex.A1, DD No.91-A which is Ex.A2, DD No.3A which is Ex.A3, Excise Control Laboratory Result which is Ex.A4, Road certificate- which is already Ex.4A and contents of register no. 19 regarding the deposition of case property.
11. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which she denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused denied to lead any evidence in his defence and the FIR No. 438/2020 State vs. Rajni 6 of 12 same was closed.
12. Thereafter, matter was listed for final arguments and arguments were adduced at length by both the parties. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
13. It is argued by the Ld. APP for the state, that state has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
14. Per contra, it is argued by the Ld. LAC for the accused, that non joinder of public witness despite availability casts a shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case and that there is no independent evidence against him.
15. 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 suppose to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
16. In present case, prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at about 10:15 PM and it is admitted FIR No. 438/2020 State vs. Rajni 7 of 12 fact, that public persons were available at the spot, which is evident from the testimony of PW1 and PW2, who stated in their examination in chief, that IO had requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. The relevant extract of their cross-examination to this effect are as under:-
PW1 i.e. W/HC Sunita, deposed in her cross examination, " IO had not served notice to any independent person or shopkeeper to join the investigation in my presence".
PW2 i.e. HC Shiv Kumar, deposed in his cross examination, "IO had not served notice to any independent person or shopkeeper to join the investigation in my presence".
PW3 ASI Vishal i.e. IO, deposed in his cross-examination, " I had not served notice to any independent person or shopkeeper to join the investigation".
17. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on "Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that 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 evident 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 FIR No. 438/2020 State vs. Rajni 8 of 12 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".
18. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55, it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola".
19. Also, in State of Punjab v. Balbir Singh , AIR 1994 SC 1872, the Hon'ble Supreme Court of India held as under :-
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-
FIR No. 438/2020 State vs. Rajni 9 of 12 settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
[Emphasis supplied].
20. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
21. In the present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility, that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present.
Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
22. Another material thing which is required to be discussed about the case of prosecution is, that on 13.09.2020, PW2 was on patrolling duty, meaning thereby, that at the relevant time, he was not in the PS and it seems, that outside the PS, then as per Punjab Rules, they being on duty was required to enter his departure & arrival to & from the PS Jahangir Puri in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No. II-The following FIR No. 438/2020 State vs. Rajni 10 of 12 matters shall, amongst others, be entered:-
(c)The hour of arrival and the 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.
Note:- Lines & Police Posts, where Register no.II is maintained.
23. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 at the spot. Hence, it creates doubt in the prosecution story.
24. In present case the seal was neither handed over to an 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.
PW-3 i.e. IO ASI Vishal, deposed in his cross-examination, that " It is also correct that no taking/ handing over memo of seal was prepared by me".
In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that:-
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the FIR No. 438/2020 State vs. Rajni 11 of 12 prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
25. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
26. All the lapses in investigation creates doubt on the very recovery of illicit liquor from the possession of the accused. The court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
27 In view of the above said description and in the absence of any cogent evidence against the accused Rajni, she is hereby acquitted for offence under section 33 The Delhi Excise Act, 2009. Case property be confiscated to the state as per rules and the same be destroyed.
28. File be consigned to record room.
29. This Judgment consists of 12 pages and all pages bear my signature.
JYOTI Digitally signed by
JYOTI NAIN
Announced and dictated directly
NAIN Date: 2024.12.18
18:06:07 +0530
into the computer in open court (JYOTI NAIN)
on 18th Day of December, 2024. JMFC-07/North District Rohini Courts, Delhi.
FIR No. 438/2020 State vs. Rajni 12 of 12