Delhi District Court
State vs . Vijay Kumar And Ors. on 21 March, 2017
IN THE COURT OF SANDEEP GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH),
NEW DELHI
F.I.R. No: 210/13
U/s 33 of Delhi Excise Act.
P.S. Saket
State Vs. Vijay Kumar and Ors.
Date of Institution of Case : 25.11.2013
Judgment Reserved on : 08.03.2017
Date of Judgment : 21.03.2017
JUDGMENT:
(a) The serial no. of the case : 2033796/16
(b) The date of commission of offence : 24.05.2013
(c) The name of complainant : HC Ajeet Singh,
: No. 315/SD,
: PS Saket, New Delhi.
(d) The name, parentage, of accused : 1. Vijay Kumar : S/o Sh. Babu Lal, : R/o VillageSidaula, : PS Tigaon, Distt. Faridabad, : Haryana.
: 2. Sumit (since expired) : S/o Sh. Sukhbir, : R/o VillageSidaula, : PS Tigaon, Distt. Faridabad, : Haryana.
: 3. Bhram Singh Bhadana FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 1 of 29 : S/o Sh. Ratan Singh : Bhadana, : R/o H.No. C3/67, BP, NIT, : Faridabad, Haryana.
: 4. Jagdeep Singh : S/o Sh. Tej Singh, : R/o H.No. M12, : Gandhi Colony, : Railway Road, NIT, : Faridabad, Haryana.
: 5. Sukhbir Singh : S/o Sh. Hem Chand, : R/o VillageSidaula, : PS Tigaon, Distt. Faridabad, : Haryana.
(e) The offence complained of : U/s 33 of Delhi Excise Act (f) The plea of accused : Pleaded not guilty (g) The final order : Accused Vijay Kumar has : been convicted U/s 33 of Delhi : Excise Act and other accused : persons have been acquitted. (h) The date of such order : 21.03.2017 Brief statement of reasons:
1. The present case arose out of secret information given secret informer on 24.05.2013 at about 1:30 PM, near NBCC Plaza, Pushp Vihar, New Delhi when HC Ajeet Singh, SI Proshun, SI R.S. Tyagi and Ct.
FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 2 of 29 Mahender were on patrolling duty. The aforementioned police officials are stated to have left PS Saket at 1:05 PM, vide departure entry bearing DD No. 36B. It is the case of prosecution that the secret informer had informed that one car bearing no. HR 51L 0662, containing illicit liquor will be coming from Gurgaon and will be going towards Badarpur side at about 2:15 PM and if a raid is conducted, heavy quantity of illicit liquor can be recovered.
2. After receipt of this secret information, HC Ajeet Singh requested 45 public persons to join investigation, but none agreed and left the spot by giving reasonable excuses. No notice could be served upon those public persons due to paucity of time. A raiding party was constituted which went to Asian Market, M.B. Road, New Delhi and started checking vehicles which were coming from Gurgaon side and going towards Badarpur. At about 2:30 PM, one Maruti Esteem car (metallic grey colour) bearing registration no. HR 51L 0662 came there which was got stopped on the signal of secret informer. On inquiry, the name of driver was revealed as Vijay Kumar (accused).
3. Upon checking the said car, 6 carton boxes were found on its rear seat and floor. 19 carton boxes were found in its bootspace (dicky). All the carton boxes were bearing the name of NV Group. 48 quarter bottles of NV Group Besto Whisky, 180 ml, for sale in Arunachal Pradesh were found in each carton box. One quarter bottle from each carton box was FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 3 of 29 taken out as sample and remaining quarter bottles were kept in the same carton boxes. Remaining quarter bottles were put in the said carton boxes and placed in separate plastic bags which were brought by Ct. Mahender. Sample quarter bottles as well as remaining liquor kept in carton boxes, which were further kept in separate plastic bags, were sealed with the seal of AS.
4. Form M29 was filled at the spot. Samples as well as Illicit liquor were seized. Maruti Esteem car in question was also seized. In the meanwhile, HC Yudhvir also reached at the spot who claimed having similar information. He was also joined in investigation. Rukka was prepared by HC Ajeet Singh and FIR was got registered through Ct. Mahender. Investigation was assigned to HC Ajeet Singh. During the course of investigation, HC Ajeet Singh prepared a site plan and interrogated accused Vijay. Accused Vijay was arrested and his disclosure statement was recorded during which he disclosed that the registered owner of the car is Sumit and he was working as his driver. Case property was deposited at malkhana. HC Ajeet Singh searched for coaccused Sumit and NBW against him were got issued from the court twice.
5. Information regarding recovery was given to Deputy Commissioner of Excise vide diary no 2386 dated 30.06.2013. On 04.06.2013, samples were sent to Excise Lab vide RC No. 40/21/13 through Ct. Ajeet and report of Chemical Examiner was obtained. On FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 4 of 29 22.08.2013, accused Sumit was enlarged on anticipatory bail by the court of Sh. Rajeev Bansal, Ld. ASJ and on 23.08.2013, he was formally arrested in the present case. Accused Sumit was released on bail on furnishing bail bonds in the sum of Rs. 20,000/. The car in question was deposited in malkhana, PS Saket. Statement of witnesses were recorded. After conclusion of investigation, chargesheet was prepared and filed in the court on 25.11.2013.
6. Vide order dated 07.05.2014, further investigation qua registered owner of the Maruti Esteem car in question was ordered to be conducted by this court. In compliance of the said order, further investigation was carried out by second IO SI Ravi Shankar Tyagi and supplementary chargesheet against accused Bhram Singh Bhadana, Jagdeep Singh and Sukhbir Singh was filed on 24.06.2014. In compliance of Section 207 Cr.P.C, copy of chargesheet and its annexures were supplied to all five accused persons. Thereafter, vide order dated 18.09.2014, charge for offence punishable U/s 33 of Delhi Excise Act was framed upon all five accused persons to which they pleaded not guilty and claimed trial. During the course of trial, accused Sumit had expired and proceedings against him abated vide order dated 18.12.2014.
7. In order to substantiate its case, prosecution has examined six witnesses. Thereafter, statements of all four accused persons, U/s 313 Cr.P.C, were recorded. Accused Vijay admitted that he was ferrying the FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 5 of 29 seized illicit liquor in the car in question on the date, time and place claimed by the prosecution. However, he claimed that he was forced to do so by Sumit. He acted in good faith at the instance of Sumit, who was his close friend and who had assured him that he will take care, if anything untoward happens.
8. Accused Bhram Singh Bhadana admitted that Maruti Esteem car bearing registration no. HR 51L 0662 was registered in his name on 24.05.2013. However, he claimed that he had sold the said car to co accused Jagdeep for a consideration of Rs. 70,000/ in the year 2012. He had executed an affidavit dated 28.12.2012 and had asked Jagdeep to get the car transferred in his name, but Jagdeep failed to get the car transferred in his name despite giving assurances to that effect.
9. Accused Sukhbir and Jagdeep claimed themselves to be innocent. They stated that they were not chargesheeted and their names were placed in column no. 12 of the supplementary chargesheet. Accused Sukhbir claimed that the car in question was purchased from coaccused Jagdeep Singh, by his son Sumit. Accused Jagdeep claimed to have purchased the car in question from coaccused Bhram Singh Bhadana. However, he claimed that he had further sold the car to Sumit. He admitted that he had not got the car in question transferred in his own name and further got it transferred in the name of Sumit. Accused Vijay and Bhram Singh Bhadana preferred to adduce evidence in support of their defence.
FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 6 of 29 However, later on, only accused Vijay adduced DE. He himself deopsed as DW01 and examined Sh. Ravi as DW02.
10. During the course of trial, all four accused did not dispute the genuineness of Chemical Examiner Report dated 13.06.2013, copy of Register No. 19 and Report of MLO, Faridabad dated 30.04.2014 in terms of Section 294 Cr.P.C. which were exhibited as Ex. A1, Ex. A2 and Ex. A 3 respectively.
Brief scrutiny of the evidence:
11. PW01 Ct. Ajeet Singh deposed that on 04.06.2013, he joined investigation with HC Ajeet Singh and on his instructions, he collected sealed pullanda of samples from malkhana vide RC No. 40/21/13, Ex. PW 1/A and deposited the same at Excise Office, ITO, Delhi against acknowledgment. After that, he went back to PS with the acknowledgment and IO had recorded his statement. He did not tamper with the seals till the pullandas remained in his possession.
12. During his crossexamination, PW01 stated that he does not remember his departure entry particulars for going to Excise Lab, ITO. He does not remember the particulars of acknowledgment in respect of samples deposited by him at Excise Lab. He volunteered that the lab officials used to affix only stamp on the road certificate as token of having FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 7 of 29 received the sealed pullandas vide RC No. 40/31/13. He does not remember the particulars of his arrival entry, recorded at PS Saket after return from Excise Lab. He denied that he had tampered with the seals of samples.
13. PW02 Ct. Mahender deposed that on 24.05.2013, he alongwith SI Proshun, SI R.S. Tyagi and HC Ajeet were on patrolling duty in the area of PS Saket. During the course of patrolling, at around 1:30 PM, when they had reached in front of NBCC Plaza, Sector05, Pushp Vihar, New Delhi, one secret informer came and informed that one car bearing registration no. HR 51L 0662, which will be coming from Gurgaon side and will be going towards Badarpur side, will be having illicit liquor in heavy quantity. HC Ajeet Singh requested 45 public persons to join investigation, but none of them agreed. After that, HC Ajeet Singh formed a raiding party comprising of him, SI Proshun and SI Ravi Shankar Tyagi. They reached at Asian Market, M.B. Road, set up barricades on the road and started checking vehicles which were coming from Gurgaon side and going towards Badarpur side.
14. PW02 Ct. Mahender further deposed that at about 2:30 PM, a car, make Maruti Esteem (silver colour) bearing no. HR 51L 0662, was seen coming from Gurgaon side which was got stopped. One person was sitting inside the car who revealed his name as Vijay. (correctly identified in court). They checked the said car and found 6 carton boxes lying on its FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 8 of 29 rear seat and floor. On checking its bootspace (dicky), 19 carton boxes were found. On opening the said carton boxes, 48 quarter bottles of illicit liquor make NV Group Besto Whisky (180 ml), for sale in Arunachal Pradesh were found in each carton box. After that, he brought 25 plastic bags (kattas) from JBlock market. HC Ajeet took out one quarter bottle from each carton box as sample and 25 carton boxes were kept in plastic bags (one plastic bag containing one carton box). HC Ajeet sealed the said plastic bags as well as samples with the seal of AS. The plastic bags were marked from Sl. No. 1 to 25 and the samples were also marked from Sl. No. 1 to 25.
15. PW02 Ct. Mahender further deposed that after that, the said illicit liquor was seized vide seizure memo, Ex. PW 2/A. The car in question was also seized vide seizure memo, Ex. PW 2/B. IO filled Form29 at the spot and prepared a tehrir which was handed over to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR, he returned back to the spot alongwith copy of FIR and original rukka and handed over the same to IO. IO arrested and carried out personal search of accused Vijay at about 6:00 PM vide memos which are Ex. PW 2/C and Ex. PW 2/D respectively. IO prepared a site plan and recorded disclosure statement of accused Vijay which is Ex. PW 1/E. After that, they returned to PS alongwith accused Vijay and case properties. Case properties were deposited in malkhana and accused was sent to lockup after medical examination. He correctly identified the case properties i.e. illicit liquor and FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 9 of 29 Maruti Esteem car in question which are Ex. P1 (Colly) and Ex. P2 respectively.
16. During his crossexamination, PW02 stated that he recorded DD No. 36B while leaving for patrolling duty, but copy of the same is not available on judicial record. He volunteered that he can produce the same. He does not know as to whether the other staff also recorded the same DD entry regarding their departure or not. He was also present with IO when the secret information was received and they were at NBCC Plaza at that time. Secret informer had told the car number to the IO. He does not know as to whether IO informed the senior officers in writing or not. IO had received secret information at about 1:30 PM. Four persons i.e. he, SI Proshun, SI Ravi Shankar Tyagi and HC Ajeet were present when the secret information was received. He does not remember as to who was the beat officer of NBCC Plaza area at that time. There was no police booth at NBCC Plaza. He had not seen the informer.
17. During his crossexamination, PW02 further stated that since he had not seen secret informer, he cannot say as to for how much time, he remained with the police party. After one hour i.e. at about 2:30 PM, the car in question reached there. He admitted that the number of the vehicle was told to the IO by the secret informer. The colour of vehicle was also told by the informer, but it was not informed as to how many people were there in the vehicle. No other vehicle of the same colour as that of the FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 10 of 29 vehicle in question was checked by their team. Other vehicles were also plying on the road. No shops were situated where the alleged vehicle was checked. No other public person was stopped by the IO to join investigation and similarly, no written notice was given to any of the public persons. They remained at the spot till 7:00 PM. They left PS on foot separately for patrolling duty. Other staff members were having the same duty hours which he was having. They all remained at the spot since their departure for patrolling till 7:00 PM.
18. During his crossexamination, PW02 further stated that he does not remember as to whether they had got anything i.e. weapon etc issued from the PS at the time of departure for patrolling or not. IO was having a bag with him when he left PS. He had not seen as to what the bag was containing. No statement of any witness was recoded at the spot by the IO. His statement was recorded by the IO on the same day after reaching PS. After reaching PS, case property was deposited, accused was got medically examined through him. After that, his statement was recorded and accused was put inside the lockup. Except this, nothing was done in his presence. They remained at the spot from 2:00 PM to 6:00 PM. Accused persons were apprehended at 2:30 PM. The accused had disclosed that he had brought the illicit liquor from Gurgaon and was going towards Sangam Vihar. He does not remember as to whether the accused had disclosed any specific place at Gurgaon from where he had brought FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 11 of 29 the illicit liquor and to which particular place he was going to deliver it at Sangam Vihar. Only IO had done the written work in this case. He denied that no recovery was effected in his presence. He denied that he had not joined investigation or that he was a stalk witness.
19. PW03 HC Dinesh deposed that on 24.05.2013, he was posted as Duty officer at PS Saket. On that day, at around 4:45 PM, he received a rukka through Ct. Mahender which was sent by HC Ajeet on the basis of which, he registered the FIR, copy of which is Ex. PW 3/A. He made an endorsement on the rukka which is Ex. PW 3/B. He handed over a copy of FIR and original rukka to Ct. Mahender to be handed over to IO HC Ajeet Singh.
20. PW04 HC Ajeet Singh deposed that on 24.05.2013, he alongwith SI Proshun, SI Ravi Shankar Tyagi and Ct. Mahender were on patrolling duty in the area of Pushp Vihar, Saket. During the course of patrolling, at around 1:30 PM, when they reached in front of NBCC Plaza, Pushp Vihar, one secret informer came and informed him that one Maruti Esteem car bearing no. HR 51L 0662 would be coming from Gurgaon side and would be going towards Sangam Vihar, in which illicit liquor will be transported and it will reach at 2:15 PM at Asian Market, M.B. Road. He shared the said information with the said police officials and requested 45 public persons to join raiding party, but none agreed and left the spot without disclosing their names and addresses. No written notice could be FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 12 of 29 served upon them due to paucity of time. He constituted a raiding party comprising of above said police officials. After that, they alongwith secret informer went to the spot i.e. Asian market, M.B. Road, set up barricades on M.B. Road and started checking vehicles which were coming from Gurgaon side.
21. PW04 HC Ajeet Singh further deposed that at around 2:30 PM, the secret informer pointed out towards an Esteem car which was coming from Gurgaon side stating that illicit liquor is kept in it. After that, secret informer left the spot. He tightened the barricade on the road and gave signal to stop the car. The driver of the said car stopped near the barricade who revealed his name as Vijay (correctly identified in court). They checked the said car and found six cartons on its rear seat and footmat. On checking the bootspace (dickey) of the said car, they found 19 cartons inside it. On checking of the said carton boxes, he found 48 quarter bottles of make NV Besto whiskey (180 ml), "For sale in Arunachal Pradesh only" in each cartoon. He took out one quarter bottle as sample from each carton and gave instructions to Ct. Mehender to bring 25 bags. Ct. Mahender brought 25 bags and he put the said 25 carton boxes in 25 bags and prepared pullandas.
22. PW04 HC Ajeet Singh further deposed that bags were sealed with the seal of AS. Samples were also tied in a cloth and sealed with the seal of AS. The bags were marked from Sl. No. 1 to 25 and the samples FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 13 of 29 were also marked from Sl. No. A1 to A25. The said illicit liquor was seized vide seizure memo, Ex. PW 2/A and the said Maruti Esteem car was seized vide seizure memo, Ex. PW 2/B. He filled Form M29 at the spot and seal after use was handed over to Ct. Mahender. He prepared a rukka, Ex. PW 4/A and handed it over to Ct. Mahender for registration of FIR. Ct. Mahender went to PS and got the FIR registered. After registration of FIR, Ct. Mahender returned to the spot alongwith copy of FIR and original rukka which were handed over to him. He interrogated accused Vijay and recorded his disclosure statement which is Ex. PW 2/E. He arrested accused Vijay and carried out his personal search vide memos which are Ex. PW 2/C and Ex. PW 2/D respectively. He prepared a site plan, Ex. PW 4/B and recorded the FIR number on the seizure memo after registration of FIR. After that, they returned to PS alongwith accused Vijay and case properties. The case properties were deposited in malkhana and accused Vijay was sent to lockup after medical examination. He recorded the statement of witnesses.
23. PW04 HC Ajeet Singh further deposed that on 23.08.2013, coaccused Sumit (since expired) came to PS on his own and showed an order of Sessions Court regarding anticipatory bail. He perused the said order and arrested coaccused Sumit vide arrest memo which is Ex. PW 4/C. Coaccused Sumit was released on bail in terms of said Anticipatory bail order and he expired during trial. He gave instructions to Ct. Ajeet Singh to take samples from malkhana and deposit them with Excise FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 14 of 29 Department. On his instructions, Ct. Ajeet took the said samples from malkhna and deposited them with Excise Department against receipt. He recorded statement of Ct. Ajeet in this regard and obtained the report of chemical examiner which is Ex. A1. He did not record the statement of ASI Ravi Shankar Tyagi and SI Proshun U/s 161 Cr.P.C. and did not cite them as witnesses in this case. He prepared a chargesheet and filed it in the court.
24. During his crossexamination, PW04 admitted that no DD entry in respect of their departure for patrolling is available on judicial record. However, they had recorded their departure entry for proceeding on patrolling vide DD No. 36B dated 24.05.2013, PS Saket. They reached at the spot at around 2:00 PM and remained there till 6:00 PM. Secret informer met them at NBCC Plaza, Sector05, Pushp Vihar who was known to him. The secret informer had told them about color, make and registration number of the vehicle in question. Information received by them from secret informer finds mention in the tehrir sent by him. No written information was sent to the senior officers. Two Sub Inspectors were accompanying him and they had discussed about the secret information and they had further informed the senior authorities.
25. During his crossexamination, PW04 admitted that he does not have any written proof regarding communication, pertaining to secret information, which had taken place between the two SubInspectors and FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 15 of 29 senior authorities. Both Sub Inspector and SHO are senior officers qua him. Investigations are assigned to IOs by SHO. However, in the present case, he had sent rukka after conducting preliminary proceedings. There was no special reason for him to investigate the present case and investigation not being conducted by some other competent police official. DD No. 36B and tehrir finds mention about two Sub Inspectors accompanying him at the spot. He admitted that daily diary register is maintained in the PS. He admitted that the information regarding police officials being on duty is recorded in daily diary register. He volunteered that the tehrir also reflects his being on duty at the spot. He denied that tehrir was forged by him and he was not present at the spot on duty. He cannot say as to how many Esteem cars and their registration numbers were checked by him on that day and at that time. He volunteered that a large number of vehicles were checked by him. He was present at NBCC Plaza, Sec5, Pushp Vihar, New Delhi when he received the secret information. Secret information was not separately recorded and it finds it mention in the rukka.
26. During his crossexamination, PW04 admitted that apart from rukka, he does not have any other written proof regarding receipt of secret information. He volunteered that the staff accompanying him was witness to the fact of receipt of secret information. The secret informer had not given information as to from which particular place, the liquor will be brought by the accused. No specific information regarding the place where FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 16 of 29 the illicit liquor was to be delivered, was given by the secret informer. He admitted that driver of the vehicle was apprehended and interrogated at the spot by him. He does not remember as to whether he had inquired from the accused regarding the specific place from where he had picked up the liquor and where he was supposed to deliver it. He cannot tell about it even after referring to the judicial record. He does not remember as to which colour of clothes were worn by the accused. He does not remember the kind of footwear (whether chappal or shoes) was worn by the accused. No written notice was issued to those persons who were requested to join investigation, due to paucity of time. Apart from rukka, there is no written proof regarding his requesting public persons to join investigation.
27. During his crossexamination, PW04 admitted that he was aware that IO has ample power to take action against a person who refuses to assist police officials during investigation. He did not conduct any investigation from the manufacturer of N.V Besto Whiskey, produced at Arunachal Pradesh as to whom it had sold the Whiskey in question. He had not prepared any handing over memo regarding seal being handed over to Ct. Mahender. DD No. 36B dated 24.05.2013, PS Saket finds mention about presence of Ct. Mahender at the spot. Road certificate, issued by MHC(M) PS Saket, when the specimen samples were sent to FSL, is available on judicial record. No change or alteration was made in the documents prepared by him at the spot later on. He denied that he had implicated the accused persons in a false case or that investigation was FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 17 of 29 conducted by him while sitting at PS. He denied that he alongwith other police staff, as claimed by him, were not on duty on the date and time in question. He denied that FIR was ante time and ante dated.
28. PW05 Sh. Pawan Singh deposed that in the year 2014, he was posted as Nodal Officer in Idea Cellular Ltd, having office at A26/5, Mohan Cooperative, Mathura Road, New Delhi44. He had received a notice U/s 91 Cr.P.C for furnishing of details of mobile nos. 9718338383 and 9718502949 for the period of 01.05.2013 to 24.05.2013, copy of which is Ex. PW 5/A. In response to the notice, he provided call details of the said numbers to IO which were duly certified by him. The said statements are Ex. PW 5/A1 and Ex. PW 5/B. He also handed over Customer Application Forms (CAF) with annexed documents to IO which are Ex. PW 5/C and Ex. PW 5/D. As per the record, mobile number 9718502949 was issued in the name of Vijay Kumar and mobile number 9718338383 was issued in the name of Sukhbir. He had also given a certificate U/s 65B of Evidence Act pertaining to the said documents, which is Ex. PW 5/E.
29. PW06 SI R.S. Tyagi deposed that on 07.05.2014, further investigation of the present case was entrusted to him. During the course of further investigation, he served notice U/s 91 Cr.P.C. to the Nodal Officer of Idea Cellular Services, Mohan Cooperative, Mathura Road, New Delhi for providing the CDRs and CAF of mobile numbers as mentioned in the notice. In compliance of the said notice, the Nodal Officer had provided FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 18 of 29 the CDRs and CAF of the said mobile numbers. The said notice is already Ex. PW 5/A. The said mobile numbers belonged to accused Vijay and co accused Sumit (since expired). After perusal of the said CDRs, it was revealed that accused persons were communicating with each other on the day of incident. The said CDRs are already Ex. PW 5/A1 and Ex. PW 5/B (colly) and certificate U/s 65B of Evidence Act is already Ex. PW 5/E, the CAF of the said mobile numbers are already Ex. PW 5/C (Colly) and Ex. PW 5/B (Colly). The mobile number used by accused Sumit (since expired) was in the name of his father namely coaccused Sukhbir Singh and the mobile number used by accused Vijay was in his own name as per CAF.
30. PW06 SI R.S. Tyagi further deposed that he collected a report regarding ownership of the car bearing no. HR 51L 0662 make Esteem from MLO, Faridabad, as per which, the said car was registered in the name of Bhram Singh Bhadana R/o NIT Faridabad. He gave notice U/s 91 Cr.P.C. to Bhram Singh Bhadana to join investigation who came at PS. He interrogated accused Bhram Singh Bhadana who disclosed that he had sold the said vehicle to Sh. Jagdeep R/o NIT Faridabad in the year 2012 for a consideration of Rs. 70,000/. After that, he interrogated Sh. Jagdeep who disclosed that he had sold the said vehicle to Sh. Sukhbir, father of coaccused Sumit.
31. PW06 SI R.S. Tyagi further deposed that he gave notice U/s 91 Cr.P.C. to coaccused Sumit for providing the RC, Insurance and other FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 19 of 29 documents. The copy of the said notice is Ex. PW 6/A and in compliance of the said notice, accused provided the RC of said vehicle which he seized vide seizure memo, Ex. PW 6/B. The said RC is Ex. PW 6/C. Coaccused Sukhbir had filed an application for release of the said car in the court, but the said vehicle was not released by the court. He prepared a supplementary chargesheet mentioning the name of accused Bhram Singh Bhadana in column no. 11 and the name of other accused persons viz. Jagdeep and Sukhbir Singh in column no. 12. He filed the same in court as per rules. He correctly identified accused persons viz. Jagdeep, Sukhbir and Bhram Singh Bhadana in court. He had not recorded disclosure statements of accused persons named in the supplementary chargesheet.
32. DW01 / accused Sh. Vijay Kumar deposed that the owner of the vehicle, in which the illicit liquor was recovered, was Sumit, who was his friend and they both belonged to the same village. Sumit had asked him to bring his vehicle to Badarpur from Gurgaon and gave him a telephone number of a person whom he had contacted. Being a friend, he went to Gurgaon and brought the said vehicle which was supposed to be handed over to his friend Sumit at Badarpur. His vehicle was stopped at Chirag Delhi where illicit liquor was recovered from that vehicle. He was not aware about the liquor which was recovered from the vehicle as he was asked only to bring some household goods which were stated to have been already loaded in the car. He claimed that he is innocent and has FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 20 of 29 been falsely implicated in the present case by police. He had told to the police officials that the vehicle in question belongs to his friend Sumit. The police had, in connivance with Sumit, implicated him in this case.
33. During his crossexamination by ld. APP for the State, DW 01 / accused Sh. Vijay Kumar admitted that cartons were recovered from the vehicle which was being driven by him. He volunteered that police officials told him that there was illicit liquor in the said cartons. He was apprehended by the police officials and made to sit in another vehicle. He does not know make and registration number of the vehicle in which he was made to sit. However, the said vehicle was a four wheeler belonging to the police. He brought the said car from outside City Center Mall, Near IFFCO Chowk, Gurgaon. Upon being shown seizure memos Ex. PW 2/A and Ex.PW 2/B, he admitted that the same bears his signatures at point C. Upon being shown disclosure statement, Ex. PW 2/E, he admitted that the same bears his signatures at point C. He had studied upto 10 th class. He had not told to the police that he was working on Mobile shop. He had not told to the police that he was working as a driver for accused Sumit. He had been paid some amount for purchasing liquor from Gurgaon and supplying the same at Sangam Vihar.
34. During his crossexamination, DW01 / accused Sh. Vijay Kumar further stated that the cartons were covered with black colour cloth and the same were lying in the dickey, on the rear seat and on the front FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 21 of 29 passenger side. He volunteered that he was not aware regarding the nature of articles kept in the said cartons under the black cloth. He denied that he was working as a driver for Sumit who had paid some amount to him for purchasing liquor from Gurgaon and supplying the same at Sangam Vihar. He denied that he was deposing falsely in order to save himself. During his reexamination by ld. defence counsel, DW01 stated that he was not aware as to what were those documents about which he had admitted that it bear his signatures.
35. DW02 Sh. Ravi deposed that accused Vijay Kumar is his neighbour in the village. He had no knowledge as to whether accused Vijay was implicated in a case of ferrying illicit liquor. He was present with Sumit when accused Vijay Kumar was sent to Gurgaon to bring his car. He knew Vijay Kumar and Sumit as they used to study together and they were good friends. They were sitting on Chaupal when accused Sumit told co accused Vijay Kumar to go to Gurgaon to bring his car to Badarpur from Gurgaon. Sumit told him that he would be meeting Vijay Kumar at Badarpur. Accused Vijay Kumar left for Gurgaon and he left for his house.
36. During his crossexamination by ld. APP for the State, DW02 admitted that he does not remember the date on which they were sitting on a Chaupal. Accused Sumit did not disclose about the nature of articles kept in the said car, but had only told that "Uska Kuch Saman Hai". He admitted that on asking of accused Sumit, coaccused Vijay Kumar went to Gurgaon FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 22 of 29 and he does not know as to what happened thereafter.
37. The court has heard the arguments advanced by Ld. defence counsel for accused persons and learned APP appearing on behalf of the State and has perused the record with their able assistance.
38. It is emphatically contended by ld. defence counsel for the accused persons that it has been established on record that accused Vijay Kumar was not aware that the vehicle in question was loaded with illicit liquor and he had merely acted as per the instructions of his friend / co accused Sumit, who has already expired. The prosecution has failed to establish as to from where the alleged illicit liquor was brought and where it was being taken. Admittedly, the secret information was not reduced into writing. No contact number through which the secret information was conveyed and contact number upon which the secret information was received, have been brought on record. There are material contradictions in the testimonies of prosecution witnesses which establish its falsity. The prosecution has miserably failed to establish that the Maruti Esteem car in question was purchased by accused Sukhbir Singh and Jagdeep Singh. The prosecution has failed to prove identity of the case property as the seals affixed on property, which was produced in the court, were damaged and this by itself, constitutes a sufficient ground for acquitting all the accused persons.
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39. Per contra, it is emphatically contended by Ld. APP for the State that the contention of the ld. defence counsel that the prosecution has not been able to establish identity of the case property is not tenable as a perusal of the testimony of PW02 Ct. Mahender shows that three bags duly sealed with the seal of AS were produced. The seals of remaining bags were in a damaged condition which had got damaged while storage in the malkhana. The prosecution has been able to establish identify of atleast three bags. In any case, since accused Vijay Kumar has himself admitted recovery of 25 carton boxes of liquor being ferried by him, all these contentions become immaterial.
40. Accused Vijay Kumar has admitted during his statement recorded U/s 313 Cr.P.C. as well as while deposing as DW01 that on 24.05.2013 at about 2:30 AM at M.B. Road, near Asian Market, Pushp Vihar, he was driving Maruti Esteem car bearing registration no. HR 51L 0662 in which 25 carton boxes of liquor were being ferried without any license or permit. However, he has claimed that he was sent to Gurgaon for bringing the said car, by his friend / coaccused Sumit without disclosing to him that carton boxes of liquor were loaded in the said car. He claims that he was told that household goods were loaded in the said car which is contrary to his answer given in response to question no. 17 put to him while recording his statement U/s 313 Cr.P.C.
41. The defence evidence adduced by accused Vijay Kumar is FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 24 of 29 contradictory in material particulars. Once the accused had admitted recovery of the contraband liquor cartons from his possession, the burden of proving, that he was not aware about contents of the carton boxes being ferried by him, lies upon him. Accused Vijay Kumar has miserably failed to discharge the onus of establishing his claim about being unaware of the contents of the carton boxes being ferried by him as per Section 106 of the Indian Evidence Act.
42. While DW01 / accused Vijay Kumar deposed that he was asked by coaccused Sumit to bring some household goods which were already loaded in the car, DW02 Sh. Ravi deposed that coaccused Sumit had told accused Vijay Kumar "uska kuch samaan hai". DW01 Vijay Kumar never claimed that his neighbour Sh. Ravi was present when co accused Sumit had asked him to bring his preloaded car from Gurgaon. DW02 Sh. Ravi could not disclose the date or time when coaccused Sumit had asked Vijay Kumar to bring his car from Gurgaon. These material contradictions in the testimonies of defence witnesses expose falsity of the defence set up by the accused Vijay Kumar.
43. Moreover, Section 52 (1) of the Delhi Excise Act raises a statutory presumption against a person from whose possession contraband liquor is found, that he has committed an offence punishable U/s 33 of the Delhi Excise Act and the burden of proving the contrary is upon the accused from whose possession the liquor is found. The accused FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 25 of 29 Vijay Kumar has miserably failed to substantiate his defence and by virtue of the statutory presumption, he is guilty for offence punishable U/s 33 of the Delhi Excise Act.
44. The court is of the considered view that the prosecution has proved seizure memo of 25 carton boxes of liquor, Ex. PW 2/A; seizure memo of Maruti Esteem car bearing registration no. HR 51L 0662, Ex. PW 2/B; arrest memo of accused Vijay Kumar, Ex. PW 2/C; personal search memo, Ex. PW 2/D; disclosure statement of accused Vijay Kumar, Ex. PW 2/E; rukka, Ex. PW 4/A; FIR, Ex. PW 3/A; endorsement made on rukka, Ex. PW 3/B; site plan, Ex. PW 4/B; liquor carton boxes, Ex. P1 (colly); Maruti Esteem car, Ex. P2; Notice U/s 91 Cr.P.C., Ex. PW 5/A; call details record of mobile no. 9718338383, Ex. PW 5/A1; call details record of mobile no. 9718502949, Ex. PW 5/B; customer application forms, Ex. PW 5/C and Ex. PW 5/D; certificate U/s 65B of Evidence Act, Ex. PW 5/E; seizure memo of RC of Maruti Esteem Car, Ex. PW 6/B and RC of Maruti Esteem Car, Ex. PW 6/C. Therefore, it has been able to establish the complete chain of events.
45. Accused Vijay Kumar has admitted during his statement recorded U/s 313 Cr.P.C. as well as while deposing as DW01 that on 24.05.2013 at about 2:30 AM at M.B. Road, near Asian Market, Pushp Vihar, he was driving Maruti Esteem car bearing registration no. HR 51L 0662 in which 25 carton boxes of liquor were being ferried without any FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 26 of 29 license or permit. However, he has claimed that he was sent to Gurgaon for bringing the said car, by his friend / coaccused Sumit without disclosing to him that carton boxes of liquor were loaded in the said car. He claims that he was told that household goods were loaded in the said car which is contrary to his answer given in response to question no. 17 put to him while recording his statement U/s 313 Cr.P.C. where in he stated that he was forced to ferry the contraband liquor due to his pressing needs at the instance of Sumit. Sumit had assured him that he will take care, if anything untowards happens.
46. The defence evidence adduced by accused Vijay Kumar is contradictory in material particulars. Once the accused had admitted recovery of the contraband liquor cartons from his possession, the burden of proving, that he was not aware about contents of the carton boxes being ferried by him, lies upon him. Accused Vijay Kumar has failed to discharge the onus of establishing his claim about being unaware of the contents of the carton boxes being ferried by him as per Section 106 of the Indian Evidence Act.
47. While DW01 / accused Vijay Kumar deposed that he was asked by coaccused Sumit to bring some household goods which were already loaded in the car, DW02 Sh. Ravi deposed that coaccused Sumit had told accused Vijay Kumar "uska kuch samaan hai". DW01 Vijay Kumar never claimed that his neighbour Sh. Ravi was present when co FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 27 of 29 accused Sumit had asked him to bring his preloaded car from Gurgaon. DW02 Sh. Ravi could not disclose the date or time when coaccused Sumit had asked Vijay Kumar to bring his car from Gurgaon. These material contradictions in the testimonies of defence witnesses casts doubts upon veracity of defence evidence.
48. Section 52 (1) of the Delhi Excise Act raises a statutory presumption against a person from whose possession contraband liquor is found, that he has committed an offence punishable U/s 33 of the Delhi Excise Act and the burden of proving the contrary is upon the accused from whose possession the liquor is found. The accused Vijay Kumar has failed to substantiate his defence and by virtue of the statutory presumption, he is guilty for offence punishable U/s 33 of the Delhi Excise Act.
49. Though accused Bhram Singh Bhadana was chargesheeted, but it is the admitted case of prosecution that he had sold the Maruti Esteem car in question to coaccused Jagdeep for a consideration of Rs. 70,000/ on 28.12.2012. There is no incriminating evidence on record against coaccused Jagdeep and Sukhbir whose names were placed in column no. 12 of the chargesheet. Therefore, accused Bhram Singh Bhadana, Jagdeep Singh and Sukhbir Singh are acquitted of the charges leveled against them. In view of the above discussion, the court holds that prosecution has been successful in establishing that on 24.05.2013 at FIR No. 210/13 PS Saket State Vs. Vijay Kumar & Anr. 28 of 29 about 2:30 AM, on M.B. road, near Asian Market, Pushp Vihar, New Delhi, 25 carton boxes of liquor were being ferried by accused Vijay Kumar in Maruti Esteem car bearing registration no. HR 51L 0662 without having any license or permit. Accordingly, accused Vijay Kumar is held guilty and is convicted for having committed offence punishable U/s 33 of the Delhi Excise Act.
Copy of the judgment be given to accused Vijay Kumar free of charge.
Announced in the open (Sandeep Garg)
Court on 21.03.2017 ACMM (South),
New Delhi.
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