Delhi District Court
Fir No.91/2020 (State vs . Nirmala @ Bagro) Ps Sagarpur on 28 July, 2023
FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 6360/2020
Unique Case ID No. -: DLND02-015458-2020
FIR No. -: 91/2020
Police Station -: SAGARPUR
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
NIRMALA @ BAGRO
W/o Sh. Roop Singh,
R/o H. No. RZ-47A, G Block, West Sagarpur,
New Delhi.
.... Accused
1.Name of Complainant : Ct. Sumer 2. Name of Accused : Nirmala @ Bagro 3. Offence complained of or proved : 33 Delhi Excise Act 4. Plea of Accused : Not guilty 5. Date of commission of offence : 03.02.2020 6. Date of Filing of chargesheet : 19.09.2020 Date of filing of supplementary 7. : 22.03.2021 charge-sheet 7. Date of Reserving Order : 20.07.2023 8. Date of Pronouncement : 28.07.2023 9. Final Order : ACQUITTED Page 1 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Sanjay Kumar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
A. FACTUAL MATRIX:-
1. Briefly stated, the case of the prosecution is that on 03.02.2020, at about 08:30 PM, in front of H. No. G-47, West Sagarpur, New Delhi, within the jurisdiction of PS Sagarpur, the accused Nirmala @ Bagro was found in possession of five petties (cartons) of illicit liquor, each carton containing 50 quarter bottles of illicit liquor (total 250 quarter bot-
tles), each bottle having label of 'Asli Santara Masaledar Desi Sharab for sale in Haryana only, 180 ml' and that, the accused was found in posses- sion of such liquor without any licence or permit, thereby, committing an offence punishable u/s 33 of Delhi Excise Act, 2009.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (here- inafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Thereafter, supplementary charge-sheet was also filed by the prosecution to place on record, the FSL result qua the seized samples of illicit liquor and a copy of the same was also supplied to the ac- cused. On finding a prima facie case against the accused, charge under sec-
Page 2 of 18FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur tion 33 of Delhi Excise Act, 2009 was framed upon accused to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the ac- cused, the prosecution led the following oral and documentary evidence.
ORAL EVIDENCE
PW 1 : HC Sumer Singh (Complainant)
W/HC Shakuntala (accompanied the IO for
PW 2 : serving notice u/s 41A Cr.P.C. upon the
accused)
PW 3 : HC Sandeep
PW 4 : (Retd.) ASI Ved Pal (IO)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Complaint of HC Sumer Singh.
Ex. PW1/B : Seizure memo.
Ex. PW1/C : Site plan.
Ex. P1 (Colly.) : Order permitting destruction of case property Photograph of two white colour plastic kattas Ex. P2 :
containing case property Sample bottle of illicit liquor having label of Ex. P3 : 'Asli Santara Masaledar Desi Sharab for sale in Haryana only, 180 ml' Notice u/s 41A Cr.P.C. served upon the Ex. PW2/A :
accused.
Ex. PW3/A : Road Certificate dated 09.06.2020
Ex. PW4/A : Rukka
Ex. PW4/B : Form M-29
Ex. PW4/C : Disclosure statement of the accused.
Page 3 of 18
FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur
DOCUMENTS ADMITTED UNDER SECTION
294 CrPC
Ex. A1 : FIR No. 91/2020
Ex. A2 : Certificate u/s 65 IEA supporting the FIR.
Ex. A3 : DD No.69B dated 03.02.2020.
Excise Report bearing no. SZD011876-
Ex. A4 :
011680 dated 04.08.2020.
4.1 PW1/Complainant HC Sumer Singh deposed on oath that
on 03.02.2020, at about 08:35 PM, when he reached near Ganda Naala, West Sagarpur during his patrolling duty, one secret informer met him and informed him that illicit liquor could be recovered, if raid is conducted at H. No. RZ-G-47, West Sagarpur, New Delhi. He stated that upon such in- formation, he alongwith secret informer reached in front of H. No. RZ-G- 47, West Sagarpur, New Delhi, where three petties (cartons) were found to be kept in front of the said house and a lady was seen dragging the said pet- ties (cartons) inside the aforementioned house, and after pointing out the aforesaid house and the lady, the secret informer left the spot. Thereafter, PW1/Complainant HC Sumer Singh approached the said lady and made in- quiry from her regarding the said petties (cartons), upon which the said lady revealed her identity as Nirmala @ Bagro W/o Sh. Roop Singh, how- ever, she could not give any satisfactory response as to the cartons. There- after, PW1/HC Sumer Singh stated that he entered the house of the said lady and found two petties (cartons) lying behind the main door. Thereafter, he opened and checked all the five petties (out of which three petties were recovered outside the house and two petties were lying inside the house) and all such petties were found to contain illicit liquor. He stated that the recovery of illicit liquor was informed at PS Sagarpur, pursuant to which Page 4 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur IO/ASI Ved Pal reached the spot and recorded his complaint. He stated that the IO also asked four to five public persons to join the investigation, how- ever, they all left the spot, citing their personal difficulties. He further stated that the IO opened the said 5 gatta petties and each of them were found containing 50 quarter bottles of illicit liquor and each bottle was hav- ing label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only' (total 250 quarter bottles of illicit liquor were recovered). He stated that one quarter bottle was drawn as a sample from each of the five gatta patties (cartons) by the IO/ASI Ved Pal and the remaining bottles were left inside the carton. He deposed that all such five samples so drawn, were marked by the IO/ASI Ved Pal as S-1 to S-5, and were tied separately with a white colour cloth and sealed with the seal of 'VP'. Qua the cartons, he deposed that the said gatta petties were marked by the IO/ASI Ved Pal as S-1A to S- 5A, and were kept in two plastic kattas, tied with a white colour cloth and duly sealed with the seal of 'VP'. He stated that the case property including the samples and the 5 gatta petties containing quarter bottles of illicit liquor were duly seized by by the IO/ASI Ved Pal. He stated that after the seizure, the seal of 'VP' was handed over by the IO/ASI Ved Pal to him. He stated that the IO/ASI Ved Pal filled the form M-29. He stated that thereafter, rukka was prepared by the IO/ASI Ved Pal upon the basis of his complaint and the said rukka was handed over to him to be taken to the PS, for the registration of FIR. He stated that pursuant to the registration of the FIR, he came back to the spot and handed over the copy of FIR and original rukka to the IO/ASI Ved Pal. Thereafter, the IO/ASI Ved Pal prepared the site plan and deposited the case property in the malkhana. He stated that the ac- cused, being a lady, was released by the IO subject to the condition that she shall join the investigation as and when instructed to do so. Accused Nir-Page 5 of 18
FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur mala @ Bagro was exempted from her personal appearance and her iden- tity was not disputed by Ld. Counsel for the accused. PW1/HC Sumer Singh correctly identified the photographs of the case property and sample of illicit liquor so seized.
During his cross-examination, PW1/Complainant HC Sumer Singh admitted that the spot where illicit liquor was recovered from possession of the accused was a residential area, where public persons were available. He admitted that no notice to join the recovery proceedings was given to any of the public persons, who refused to join the investigation. He stated that the case property was brought to the PS on a private e-rickshaw and was thereby deposited in malkhana. He further admitted that seal im- posed by the IO on the plastic katta containing the case property/cartons of illicit liquor was not visible in the photograph of the case property Ex.P2. He stated that the seal of 'VP' was handed over by the IO to him. He de- nied the suggestion that he was not on patrolling duty and all the docu- ments have been prepared by the IO. He further denied the suggestion that the plastic katta shown in the photographs Ex.P2 did not contain any liquor.
4.2 PW2 W/HC Shakuntala deposed that on 06.05.2020, she alongwith IO/ASI Ved Pal went to H. No. G-47, G Block, West Sagarpur, New Delhi for investigation of the present case and upon seeing the ac-
cused, they served notice u/s 41A Cr.P.C. upon her to join the investigation. She correctly identified the accused.
During her cross-examination, PW2 W/HC Shakuntala ad- mitted that she was not the part of the investigation at the time of recovery of the case property. She further admitted that no case property was seized in her presence.
Page 6 of 18FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur 4.3 PW3/HC Sandeep proved copy of Road Certificate bearing no. 72/21/20 dated 09.06.2020, vide which he obtained 5 sample bottles of the case property, duly sealed and deposited the same with Excise Control Laboratory, Vikas Bhawan, ITO, New Delhi, upon the instructions of the IO/ASI Ved Pal. He further stated no tampering was done to the samples of the case property till the time it remained in his custody.
During his cross-examination, PW3/HC Sandeep admitted that he was not the party of the investigation at the time of recovery of the case property. He further admitted that no case property was seized in his presence.
4.4 PW1/IO (Retd.) ASI Ved Pal deposed that on 03.02.2020, upon receiving information vide DD No.69B dated 03.02.2020 regarding recovery of illicit liquor, he reached at site of occurrence, i.e. H. No. G-47, in front of West Sagarpur, New Delhi, where Ct. Sumer was found present, who handed him over five petties (cartons) filled with quarter bottles of il- licit liquor and told him that the said recovery of illicit liquor was effected from the accused Nirmala @ Bagro. He further stated that he recorded the complaint of Ct. Sumer Singh and also asked four to five public persons to join the investigation, however, they all left the spot, citing their personal difficulties. He further stated that he opened all 5 petties (cartons) and each of them were found containing 50 quarter bottles of illicit liquor and each bottle was having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' (total 250 quarter bottles of illicit liquor were recov- ered). He stated that one quarter bottle was drawn as a sample from each of five petties (cartons). He stated that the case property including the five Page 7 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur samples so drawn and the 5 petties (cartons) containing the remaining quar- ter bottles of illicit liquor were duly seized by him and were marked as S-1 to S-5 and S-1A to S-5A, respectively and were also duly sealed with the seal of "VP". He stated that after the seizure, he filled form M-29 and also prepared the site plan at the instance of Ct. Sumer Singh. He stated that he prepared the rukka upon the basis of the complaint of Ct. Sumer Singh and the said rukka was sent to PS, via Ct. Sumer Singh, for the registration of FIR. Thereafter, he served Notice u/s 41A upon the accused on 06.05.2020 in the presence of W/Ct. Shakuntala. He recorded the disclosure statement of the accused. He stated that the case property was taken to PS and sub- mitted in malkhana. After completion of investigation, he prepared the charge-sheet and submitted the same before the concerned court. He cor- rectly identified the accused and the case property in the court.
During his cross-examination, PW4/IO ASI Ved Pal admit- ted that the spot from where illicit liquor was recovered from possession of the accused was a residential area, where public persons were available. He admitted that no notice to join the recovery proceedings was given to any of the public persons, who refused to join the investigation. He further ad- mitted that no seal handing over memo was prepared by him at the time of handing over 'VP' seal to Ct. Sumer Singh. He stated that the case property was deposited in the malkhana via manual rickshaw. He stated that he did not remember the DD number vide which Ct. Sumer Singh was on pa- trolling duty. He denied the suggestion that the case property was falsely planted upon the accused. He further denied the suggestion that all the doc- uments had been prepared by him in the PS. He further denied the sugges- tion that no illicit liquor was recovered from the possession of the accused.
Page 8 of 18FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
5. On 15.07.2023, statement of accused Nirmala @ Bagro u/s 313 Cr.PC was recorded, wherein she denied the case of the prosecution and stated that she has been falsely implicated in the present case. She chose not to lead defence evidence and hence, DE was closed and matter was fixed for final arguments.
ARGUMENTS-
6. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offences u/s 33 Delhi Excise Act and the relevant provision of Delhi Excise Act.
On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no independent public witnesses were made a part of the search and seizure of the case property, despite the fact that the alleged illicit liquor was recovered from a public place. It has been argued that the case property was falsely planted upon the accused and as such, she is liable to be acquitted.
INGREDIENTS OF THE OFFENCE-
7. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Excise Act, 2009 is reproduced for ready reference-
Page 9 of 18FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur "33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-- (a) manufactures, imports, exports, transports or removes any intoxicant; (b) constructs or works any manufactory or warehouse; (c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari; (e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor; (f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees"
8. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of in- nocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused.
9. In the case such as the present one, the fact of recovery, seizure, sampling and the chain of custody is of utmost importance to bring home the guilt of an accused. The case of the prosecution is that 5 cartons/gatta petties of illicit Indian liquor, each carton containing 50 quarter bottles of illicit liquor meant for Sale in Haryana, were seized from the accused, out of which two cartons were found lying inside her house and she was seen carrying the remaining three cartons inside her house. Recovery of the alleged illicit liquor which the accused was supposedly in possession of, without a valid license, was effected, at/in front of her house and the time of recovery was 08:30 PM, however no public person was made a witness to the said recovery. It is not disputed by the prosecution witnesses on whose testimony the prosecution seeks to rely, that at the time Page 10 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur of recovery of the illicit liquor, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the proceedings by the police.
10. The importance of joining public persons in the recovery proceedings has time and again been emphasised by the judicial pronouncements. At this juncture, reference is made to the judgement of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.
5. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have noted down their names and addresses etc. and would have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
11. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
Page 11 of 18FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur "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-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."
12. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of recovery. In the present case, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. As per documentary evidence, the cartons containing illicit liquor were recovered at 08:30 PM. The rukka Ex. PW1/D was prepared at 10:40 PM. The FIR (Ex.A1) was registered at 10:55 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 08:30 PM till atleast 10:55 PM. However, despite being at the spot for more than two hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100(4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join Page 12 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
13. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgement of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
14. The present FIR has been registered on the information of PW1/HC Sumer Singh, whose version is that on 03.02.2020, when he was on patrolling duty, he conducted raid at H. No. G-27, West Sagarpur, New Delhi, based upon a secret information and seized 5 cartons/gatta petties of illicit Indian liquor, each carton containing 50 quarter bottles meant for Sale in Haryana, from the accused. Pertinently, no DD entry has been tendered into evidence regarding the factum of patrolling duty of PW1 on the date of the incident. In this regard, as per the mandatory provision of the Punjab Police Rules, DD entry prior to departure and after arrival is required to be lodged in the dairy of the police station, by each police official. Rule 49, Chapter 22 of the Punjab Police Rules, 1934 is reproduced as under -
"22.49 - Matters to be entered in Register no. II - The following matters shall, amongst others, be entered :-Page 13 of 18
FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur ... (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 of elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on the arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
In this case, the failure to recollect the DD number vide which PW1/HC Sumer Singh was on patrolling duty, is clear from the cross-examination of PW4 IO/ASI Ved Pal. Since public persons were not joined in the investigation, the departure entry of PW1/HC Sumer Singh, regarding his patrolling duty on the date of incident and the time when recovery of illicit liquor was effected from the possession of the accused, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW-1 is present on record. Thus, there is no documentary evidence to corroborate the version of PW1/HC Sumer Singh.
15. Further, as per the testimonies of the prosecution witnesses, PW4/IO ASI Ved Pal opened all five gatta petties containing illicit liquor, and drew out one quarter bottle from each of the petties, as a sample. Thereafter, all the 5 samples were tied separately with a white coloured cloth and marked as S1-S5 and sealed with the seal of 'VP'. Similarly, all 5 gatta petties marked as S-1A to S-5A, containing the remaining bottles were put in a total of 2 plastic kattas, tied with a white coloured cloth and sealed with the seal of 'VP'. PW4/IO ASI Ved Pal stated that after use, seal was handed over to Ct. Sumer Singh. In this regard, there is no separate seal handing over or seal taking memo on record. Thus, the case property has been transferred from one official to another, however, no DD entry has been made with regard to the same. Further, the seal remained with the junior police official as, it is not the case of the prosecution that the seal Page 14 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur was handed over to any independent person after use. Pertinently, there is no documentary evidence to show if the seal was deposited in the malkhana, so that the same was outside the reach of the IO/other police officials. As per the testimony of prosecution witnesses PW1 and PW4, only the case property was deposited in the malkhana and there is no entry of deposit of the seal. What was the fate of the seal remains unexplained. In such circumstances, the possibility of interference or tampering of the seal and the contents of the seized case property cannot be ruled out. Reliance is placed upon the judgement of the Hon'ble High Court of Delhi in the case of Safiullah v. State (Delhi Admn.) 1992 SCC OnLine Del 516 :(1993) 49 DLT 193. Therefore, it is safe to conclude that the prosecution has NOT been able to prove safe and tamper-proof custody of the case property in the present case.
16. It is also to be noted that PW1/HC Sumer Singh has deposed that after intimation of recovery of illicit liquor was sent to the police station, the IO/ASI Ved Pal came to the spot, took out the illicit liquor and prepared the seizure memo. He also sealed the remaining property. Thereafter, the rukka was prepared by IO/ASI Ved Pal and was handed over to PW1/HC Sumer Singh for registration of FIR. Similar is the deposition of the PW4 IO/ASI Ved Pal. In the consistent version of the prosecution witnesses regarding the chronology of events, the seizure memo Ex. PW1/B was prepared before the registration of the FIR. However, it is observed that the seizure memo contains the description and number of the FIR. If the FIR was not in existence at the time of preparation of seizure memo than it is a open glaring question as to how the FIR number surfaced on Ex.PW1/B. This puts the genuineness of the seizure memo Ex. PW1/B Page 15 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur under a cloud of suspicion and gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the illicit liquor or number of the said FIR was inserted in the seizure memo after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the case property in the manner alleged by the prosecution. Reliance is being placed upon the judgment of Hon'ble High Court of Delhi in the case of Giri Raj v. State, 1999 SCC OnLine Del 1030. That being said, the benefit arising out of a doubtful recovery of case property must necessarily go to the accused.
17. Moreover, in the considered opinion of this court, even the identification of the case property is not established. It is stated by the pros- ecution that the case property has been destroyed on 21.02.2022, as per the directions of the Assistant Commissioner (Excise) contained in order bear- ing no. Con/Misc/2022/5038-5039 dated 09.02.2022. In this regard, even though Section 60 of the Delhi Excise Act provides that non-production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. During the examination of prosecution witnesses, one quarter bottle, in unsealed con- dition having the label of "Asli Santara Masaledar Desi Sharab for sale in Haryana only, 180 ml" was produced as sample of the case property, for the purposes of identification. Further, only one photograph capturing two plastic kattas, in unsealed condition, supposedly containing the case prop- erty/gatta petties comprising illicit liquor were shown to the witnesses for the purposes of identification of case property. It is pertinent to mention Page 16 of 18 FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur that no photograph of the entire lot of case property or any video recording as to the destruction of the case property was produced by the prosecution. The sample of the case property so produced was also in unsealed condi- tion. Further, it stands admitted by PW1 in his cross-examination that the two plastic kattas showing case property in photograph Ex. P2 do not bear any seal as was imposed by the IO during seizure proceedings. In such cir- cumstances, the standard of proof beyond reasonable doubt, cannot be said to be met. Accordingly, the identification of the case property is not estab- lished and this fact becomes fatal to the case of prosecution, going to its roots.
18. In my opinion, the circumstances mentioned above are suffi- cient to punch holes in the version of the prosecution. The case of the pros- ecution cannot be said to be proved on the requisite threshold. Therefore, considering the above discussion, the inevitable conclusion is that the pros- ecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. While coming to this conclu- sion, this Court is also conscious of the presumption enshrined under Sec- tion 52 of the Delhi Excise Act. However, the same is not applicable in the present case as the recovery from possession of the accused, which is the condition precedent for invoking the presumption, is not proved in the present case.
CONCLUSION
19. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Delhi Excise Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution.
Page 17 of 18FIR No.91/2020 (State vs. Nirmala @ Bagro) PS Sagarpur The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is also highly doubtful. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution.
20. Resultantly, the accused NIRMALA @ BAGRO is entitled for benefit of reasonable doubt and is hereby found not guilty. She is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Announced in the presence of
the accused in open court (Isha Singh)
MM-03/PHC/NDD/28.07.2023
Certified that this judgment contains 18 pages and each page bears my signature.
(Isha Singh) MM-03/PHC/NDD/28.07.2023 Page 18 of 18