Delhi District Court
State vs . Pappu on 31 March, 2023
IN THE COURT OF SH. AJAY NARWAL, MM-02, NORTH DISTRICT, ROHINI
COURTS, DELHI
State Vs. Pappu
FIR No. 1399/2015
PS: SP Badli
U/S : 33 Delhi Excise Act
JUDGMENT
ID number of the case : 5295917/2016
Date of commission of offence : 10.12.2015
Date of institution of the case : 12.05.2016
Name of the complainant : Const. Rohtash
Name of accused and address : Pappu S/o Sh. Bansi Ram, R/o H. No. 748,
Gali No. 18, Jiwan Park, Siraspur, Delhi
Offence complained of or proved : U/s 33/38 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 31.03.2023
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. This is the prosecution of the accused namely Pappu upon a charge sheet filed by the police officials of police station SP Badli under section 33/38 Delhi Excise Act.
2. The allegation against the accused is that on 10.12.2015 at about 04.00 p.m. near Mahadev Dharamkanta, Siraspur, Delhi within the jurisdiction of PS SP Badli, accused was found in possession of illicit liquor for sale in Haryana as per seizure memo Mark X, which he was carrying without any permit or license and thereby he committed an FIR No. 1399/2015 State Vs. Pappu Page No. 1 of 14 offence punishable U/s 33/38 Delhi Excise Act. Accordingly, he stands charged for offence u/s 33/38 Delhi Excise Act.
3. Briefly stated, as per the case of prosecution, on 10.12.2015, PW1/Ct. Rohtash was posted at PS SP Badli as constable. At about 4.00 p.m, he was on patrolling and reached to near Mahadev Dharamkanta, Siraspur, Delhi. After reaching there, he found that one person was having one plastic white katta while placing it on the road. He after seeing him became confused and he apprehended him and checked the katta. From the katta, the smell of illicit liquor was coming. Upon inquiry the person disclosed his name as Pappu. He conveyed the information to the DO of PS SP Badli.
4. After completing the formalities, investigation was carried out by PS SP Badli and a charge sheet was filed against the accused. The charge was framed against the accused u/s 33/38 Delhi Excise Act, to which he pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution has examined two witnesses.
6. PW1/Ct. Rohtash deposed that on 10.12.2015, he was posted at PS SP Badli as constable. At about 4.00 p.m, he was on patrolling and reached to near Mahadev Dharamkanta, Siraspur, Delhi. After reaching there, he found that one person was having one plastic white katta while placing it on the road. He after seeing him became FIR No. 1399/2015 State Vs. Pappu Page No. 2 of 14 confused and he apprehended him and checked the katta. From the katta, the smell of illicit liquor was coming. Upon inquiry the person disclosed his name as Pappu. He conveyed the information to the DO of PS an from the PS, Ct. Manjeet and Giriraj arrived at the spot. They checked the katta and upon checking 193 quarter bottles, 140 quarter bottles were found of Desi Santra Masaledar having written upon it for sale in Haryana of 180 ml. and the remaining 53 quarter bottles were of Impact Grain Whisky for sale in Haryana of 180 ml. These quarter bottles were of yellow colour having any particular seal. 10 quarter bottles were taken off Desi Santra Asli Masaledar and remaining 130 were kept in the same katta. 5 quarter bottles of grain Impact Whisky were taken as sample and the remaining 48 quarter bottles were kept in the same katta. The samples were given the serial no. 1 to 10 (of desi santra masaledar) and the samples of Grain Impact Whisky were given serial no. 11 to 15. The plastic katta was wrapped with the white cloth and sealed with the seal of GR. Form No. 29 was also filled up. Thereafter, seal after use was handed over to him. IO prepared tehrir upon his statement Ex. PW1/A. Thereafter, IO prepared site plan at his instance Ex. PW1/B. Ct. Manjeet returned to the spot after registering the case. IO after putting the seal prepared the seizure memo. Thereafter, accused was arrested and personally searched vide memo Ex. PW1/C and Ex. PW1/D. His disclosure statement Ex. PW1/E was recorded. The seizure memo is Ex PW1/F. Witness identified the accused present in the court. He identified the case property Ex. P1 & P2. He also identified destruction order as Ex. P3, report of the SHO regarding destruction as Ex. P4, photographs and CD as Ex. P5 & P6. Witness FIR No. 1399/2015 State Vs. Pappu Page No. 3 of 14 was crossexamined by ld. Counsel for the accused.
7. PW-2/ASI Giriraj deposed that on 10.12.2015, on receipt of DD no. 63 B, he alongwith Ct. Manjeet went to the spot i.e. Near Mahadev Dharam Kanta, Jeevan park Siraspur Delhi, where Ct. Rohtash was persent and handed over to him the custody of accused Pappu and illicit liquor in a white colour bag. Thereafter, he asked four five public persons to join the investigation, however thay all had left the spot without disclosing their names and addresses and after telling their reasonable excuses. Thereafter, he recorded the statement of Ct. Rohtash Ex. PW1/A. In the meanwhile, HC Satender from Excise Department also came at the spot as he also got the information. Thereafter, he checked the plastic katta and found 193 quarter bottles wherein 140 quarter bottles were of Asali Santra Masaledar Desi Sharab for sale in Haryana only contents 180 ml and having seal of orange colour on each of the cap of the quarter bottles and 53 quarter bottles of Impact Grain whiskey for sale in Haryana only contents 180 ml and having seal of black and yellow colour on each of the cap of the quarter bottles. Thereafter, he separated five quarter bottles of Impact Grain whiskey and 10 quarter bottles of Asali Santra Masaldar Desi Sharab as samples and the remaining quarter bottles were kept back in the plastic bag. The mouth of the plastic bag was tied with the help of white colour cloth and sealed with the seal of GR. Thereafter, he gave serial no. 1 to 10 to the sample quarter bottles of Asali Santra Masaledar Desi Sharab and serial no. 11 to 15 to the sample bottles of Impact Grain Whiskey. The mouth of the FIR No. 1399/2015 State Vs. Pappu Page No. 4 of 14 sample bottles were tied with the help of the white colour cloth and sealed with the seal of GR. Thereafter, he filled form M29 Ex. PW2/A. Seal after use was handed over to Ct. Rohtash. Thereafter, he seized the case property including the sample vide seizure memo Ex. PW1/F. Thereafter, he prepared the rukka Ex. PW2/B and the same was handed over to Ct. Manjeet for registration of FIR. He went to the PS and the got the FIR registered and came back on the spot and handed over copy of FIR and original rukka to him. Thereafter, he prepared the site plan at the instance of Ct. Rohtash Ex. PW1/B. Thereafter, he arrested and personally searched the accused vide memos Ex. PW1/C and Ex. PW1/D. Thereafter, he recorded the disclosure statement of the accused vide memo Ex. PW1/E. He recorded the statement of HC Satender, Ct. Manjeet and Ct. Rohtash. He identified the accused present in the court. Thereafter, they came back to the PS. The case property was deposited with MHC (M) and accused was sent to police lock up after medical examination. On 08.02.2016, he sent the samples of the case property alongwith samples seals for chemical examination to the excise laboratory Vikas Bhawan through Ct. Balbir vide RC no. 76/21/2016. He recorded the statement of MHC M /HC Jagat and Ct. Balbir in this regard. During investigation, he got the report from Excise Laboratory Vikas Bhawan dated 17.02.2016. He placed the same on record Ex. PW2/C. During his examination, it is reported that case property is already exhibited as P1 to P6 and the Ld. Counsel for accused submits that he will not dispute the non production of case property during examination of present witness. Accordingly, production of the case property is hereby dispensed with. The case FIR No. 1399/2015 State Vs. Pappu Page No. 5 of 14 property is already Ex. P1 to Ex. P6.
8. Accused admitted the genuineness of FIR No. 1399/2015, MHC(M) with copy of register No. 19, statement of Ct. Balbir, who deposited the sample to FSL and report of chemical examiner u/s 294 of the Criminal Procedure Code, 1973 (herein after referred as Cr.P.C). Statement of the accused was recorded U/s 281 of Code wherein all the incriminating circumstances were put to him which he denied and pleaded his false implication and also false plantation of the case property. He, however, chose not to lead defence evidence. Thereafter, final arguments were heard.
9. I have heard the Ld. APP and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no public witnesses were examined in the present case regarding recovery of illicit liquor. He further submitted that the accused has been falsely implicated in the present case and the case property has also been planted against the accused.
10. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided FIR No. 1399/2015 State Vs. Pappu Page No. 6 of 14 by any statute. This general burden never shifts and it always rests on the prosecution.
11. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus for the possession of which he is unable to account satisfactorily. Relevant extract of the said provision is reproduced below:
"Presumption as to commission of offence in certain cases. - (1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence."
12. But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that the words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre- requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution FIR No. 1399/2015 State Vs. Pappu Page No. 7 of 14 has proved the possession of the alleged articles by the accused that the accused can be called upon to account for the same.
13 However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case. Hence, he deserves to be acquitted.
14. During the final arguments, Ld. Counsel for the accused submitted that the prosecution did not examine even a single public witness to prove the recovery of illicit liquor from the possession. In the present case, the recovery witnesses are only police witnesses and accused has been falsely implicated in the present case.
15. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
16. From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put FIR No. 1399/2015 State Vs. Pappu Page No. 8 of 14 forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
17. In the instant case, as per the testimonies of PWs and also from the perusal of site plan Ex. PW1/B, the alleged recovery was made from a busy locality which was very close to the main road. Therefore, it cannot be said that no public person would have been available at the spot. Although prosecution witnesses have asserted that they implored some of the public witnesses to join the investigation but they refused to participate in the investigation. This explanation tendered by the prosecution witnesses does not seem to be tenable as neither the details of those public persons have been brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them.
18. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story.
FIR No. 1399/2015 State Vs. Pappu Page No. 9 of 14 Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"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 shop keepers 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 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."
19. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only FIR No. 1399/2015 State Vs. Pappu Page No. 10 of 14 requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
20. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found -as in the present case -that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
21. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their FIR No. 1399/2015 State Vs. Pappu Page No. 11 of 14 testimonies more closely and should preferably be corroborated.
22. The prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. It should be noted that if the police personnel who has apprehended the accused with illegal liquor was on patrolling duty, prosecution should have brought the relevant records showing his arrival and departure and should have proved by documentary evidence that he was on patrolling duty by producing DD entry for the same.
23. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
24. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the FIR No. 1399/2015 State Vs. Pappu Page No. 12 of 14 Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
25. Since all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that chances of false implication of accused under the provisions of Excise Act cannot be ruled out at the instance of the police.
26. As per the testimonies of PWs, the sample of liquor and case property were sealed by the PW2/ASI Giriraj Prasad with the seal of "GR" and after use the seal was handed over to Ct. Rohtash who subsequently deposited the same in malkhana. Interestingly, no seal handing over memo was ever prepared in the present memo. Also, prosecution did not file any document on record to show that the said seal was eventually deposed by PW/Ct.Rohtash in malkhana.
27. Further, PW2/ASI Giriraj Prasad in his testimony had interalia deposed that on the date of incident, he had reached at the spot. He met PW1, who handed over him the recovered case property i.e. illicit liquor. Thereafter, he had prepared rukka Ex. PW2/B, counted illicit liquor, took out sample and prepared M-29 form at the spot. Thereafter, he seized the case property vide seizure memo Ex. PW1/F and sealed the same. Thereafter, FIR No. 1399/2015 State Vs. Pappu Page No. 13 of 14 he had sent PW1 to the PS with rukka for registration of FIR. Perusal of his testimony would clear show that he had seized the case property before the registration of FIR.
28. It is pertinent to mention that perusal of the seizure memo Ex. PW1/F would show that "FIR No. 1399/2015" is mentioned therein. It is very difficult to understand as to how FIR No. could mentioned on the seizure memo when the FIR itself was not registered at the time of preparation of seizure memo.
29. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
30. Therefore, in view of the above discussions and findings, the accused Pappu is acquitted for the offence u/s 33 of Delhi Excise Act.
Announced in the open court (AJAY NARWAL)
on 31.03.2023 Metropolitan Magistrate-02,
North District/Rohini/Delhi
31.03.2023.
FIR No. 1399/2015 State Vs. Pappu Page No. 14 of 14