Delhi District Court
State vs Anil Kumar on 23 December, 2024
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
PRESIDED BY: MS. AKRITI MAHENDRU
Cr.C. No. 7328/2022
FIR No. 206/2021
PS: Patel Nagar
State vs. Anil Kumar
CNR No. DLWT02- 011615-2022
JUDGMENT
a) ID. No. of the case : 7328/2022
b) Date of Commission
: 04.06.2021
of offence
c) Name of the
: Sh. Vijay Raj Singh.
Complainant/ Informant.
Anil Kumar S/o Sh. Rajender
d) Name of the Accused, Kumar, R/o House No.
his parentage and : 212/12, Gali No.8, Prem
address Nagar, Baljeet Nagar, Patel
Nagar, Delhi.
e) Offences complained 33 (f) of Delhi Excise Act,
:
of 2009
f) Plea of the Accused : Pleaded not guilty
g) Final Order. : Acquittal
h) Date of such order. : 23.12.2024
i) Date of institution. : 20.05.2022
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:16:43
+0530
State Vs. Anil Kumar FIR No. 206/2021 Page No. 1 of 29
1. Vide this judgement this court shall dispose of the present case FIR
registered under Section 33 (f) of the Delhi Excise Act, 2009 at PS, Patel
Nagar.
02. Shorn off unnecessary details, the case of the prosecution is that on
04.06.2021 Ct. Heera Lal, ASI Narender, Ct. Ghanshyam, Ct. Randhir and
SI Vijay Raj were on patrolling duty at DMS Road, Baljeet Nagar. At
around 09:15 PM, they were informed by a secret informer that one person
might bring illicit liquor to his house situated in Baljeet Nagar and can be
apprehended if raid is conducted. Thereafter, they went to Gali No. 22B,
Baljeet Nagar where they saw that one person was carrying a katta on his
left shoulder. The secret informer pointed towards the said person and then
left from there. They stopped the person and checked his katta. Upon
checking the said katta, one green color bag was found therein, the bag was
found containing 85 quarter bottles of liquor, out of which, 40 quarter
bottles were bearing label of ‘Race Seven Metro Liquor for sale in Haryana
only’ (180 ML), 25 quarter bottles were bearing label of ‘ Santara for sale
in Haryana only’ (180 ) and 20 quarter bottles were bearing label of ‘ Taja
Santara for sale in Haryana only’ (180 ML). One bottle of each brand was
taken out as sample and the remaining bottles were kept back in the same
katta. The case property was seized and was sealed with the seal of VRS.
Thereafter, accused was arrested. The FIR was registered and matter was
investigated into. Upon completion of investigation, a final report in the
form of chargesheet under Section 173 of the Code of Criminal Procedure,
1973 was forwarded to this Court arraying Anil Kumar as Accused.
Digitally signed
by Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:16:53 +0530
State Vs. Anil Kumar FIR No. 206/2021 Page No. 2 of 29
03. After taking cognizance of the offences complained of in the
instant case FIR, the accused was summoned vide order dated 28.06.2022.
Pursuant to his appearance, copy of chargesheet along with accompanying
documents was supplied to the accused in compliance of the provisions of
Section 207 of the Code of Criminal Procedure, 1973. Subsequently, upon
hearing the prosecution as well as the defence and after careful perusal of
the material available on record, charge for offence punishable under
Section 33 (f) of the Delhi Excise Act was framed against the accused on
13.10.2022 to which he pleaded not guilty and claimed trial.
04. In order to prove the case against the accused, prosecution cited 10
witnesses in its favour.
05. HC Heera Lal was examined as PW1 by the prosecution. He
deposed that on 04.06.2021, he was posted as Constable at PS Patel Nagar,
New Delhi. On that day, he alongwith ASI Narender Singh, Ct.
Ghanshyam, Ct. Randhir and SI Vijay Raj Singh was on patrolling duty at
DMS Road, Baljeet Nagar. At about 09:15 PM, one secret informer
informed them that one person might bring illicit liquor and can be
apprehended, if raid is conducted. Thereafter, as per secret information,
they went to Gali No.22B, Baljeet Nagar, where they saw that one person
was carrying a katta on his left shoulder. They stopped him and checked
the katta. Upon checking, one green bag was found in the katta and the bag
was found containing illicit liquor. Upon inquiry, accused disclosed his
Digitally signed
by Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:17:15 +0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 3 of 29
name as Anil. Thereafter, IO interrogated the accused and checked the bag
which contained 85 loose quarter bottles out of which, 40 quarter bottles
were of “Race Seven Metro Liquor for Sale in Haryana Only, 180 ml”, 25
quarter bottles were of “Santara for Sale in Haryana only 180 ml” & 20
quarter bottles were of “Taja Santara for Sale in Haryana only 180 ml”.
IO took out one sample bottle of each brand and put the remaining quarter
bottles in the said katta. Thereafter, IO covered the mouth of the sample
bottles with a piece of white cloth and sealed them with the seal of ‘VRS’.
IO also sealed the katta with the seal of ‘VRS’. After use seal was handed
over to him. Thereafter, IO seized the case property vide seizure memo,
Ex. PW-1/A. Subsequently, IO SI Vijay Raj prepared the tehrir and handed
over the same to him for registration of FIR. He went to the PS and handed
over the tehrir to the Duty Officer. He deposed that he could identify the
case property, if shown to him. At the stage, MHC(M) produced order
no.Con.23329/2022/540 dated 04.05.2022 regarding the destruction of case
property of the present case along with certificate. Copy of same was
Ex.P-1 (OSR) (running into two pages). Case property was Ex.P-2 (colly.).
06. Ld. APP for State sought permission to put some leading
questions to the witness. Said permission was granted. Witness admitted
that after registration of FIR, investigation of the case was further handed
over to ASI Anil. He further stated that they returned to the spot and
accused was interrogated by the second IO ASI Anil. He admitted that the
accused was released after service of notice u/s 41-A Cr.P.C. PW1 correctly
identified the accused in court.
Digitally signed
by Akriti
Mahendru
Akriti Date:
Mahendru 2024.12.23
16:17:25
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 4 of 29
07. During cross-examination by Ld. Counsel for accused, PW1
conceded that the IO had not informed any senior officer regarding the
secret information in his presence. He deposed that the IO had prepared
tehrir and Form M-29 in his presence. He revealed that he had left the spot
along with tehrir at about 11:00 PM. He claimed that IO had requested the
passersby to join the investigation, however, no one agreed and no notice
was served upon the passersby who refused to join the investigation. He
further stated that the names and addresses of the said passersby had not
been recorded by the IO. He further stated that seal handing over memo
was not prepared by the IO in his presence. He further stated that IO had
put the seal of ‘VRS’ on the case property at the spot. He further stated that
IO had filled one copy of Form M-29. He further stated that Site Plan was
prepared by the IO. He failed to recall whether his signature was obtained
by the IO on the said site plan or not. He denied the suggestion that site
plan was prepared at the PS. He further stated that secret informer had not
given any physical description of the accused. He further stated that IO had
prepared the documents while sitting on the ground at the spot. He further
stated that no CCTV camera was installed at or nearby the spot. He further
stated that he reached the PS with tehrir at about 11:00 PM. He further
stated that he did not remember whether he had made any arrival entry. He
admitted that he had not made any separate DD entry regarding his
departure for patrolling. He further stated that they reached at the spot on
foot. He further stated that their team had separated at the spot before the
apprehension of the accused. He further stated that the distance between
the spot and PS was about 1 KM and case property was taken by him on an
Digitally signed
by Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:17:32 +0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 5 of 29
e-Rickshaw. He failed to recall the Registration number of the said e-
Rickshaw. PW1 denied the suggestions put forth by Ld. counsel for the
accused namely;- that no illicit liquor was recovered from the possession
of the accused; or that the case property was falsely planted upon the
accused; or that all the writing work was done at PS; or that he was
deposing falsely.
08. Ct. Randhir Singh was examined as PW2 by the prosecution. He
deposed that on that day, he alongwith ASI Narender Singh, Ct.
Ghanshyam, Ct. Randhir and SI Vijay Raj Singh was on patrolling duty at
DMS Road, Baljeet Nagar. At about 09:15 PM, one secret informer
informed them that one person might bring illicit liquor and could be
apprehended, if raid is conducted. Thereafter, as per secret information,
they went to Gali No.22B, Baljeet Nagar, at about 09:40 PM they saw that
one person was carrying a katta on his shoulder. They stopped him and
checked the katta. Upon checking, one green bag was taken out from the
katta and the bag was found containing illicit liquor. Upon further inquiry,
accused disclosed his name as Anil. Thereafter, IO/SI Vijay Raj
interrogated the accused and checked the bag which contained 85 loose
quarter bottles out of which, 40 quarter bottles were of “Race Seven Metro
Liquor for Sale in Haryana Only, 180 ml”, 25 quarter bottles were of
“Santara for Sale in Haryana only 180 ml” & 20 quarter bottles were of
“Taja Santara for Sale in Haryana only 180 ml”. IO took out one sample
bottle of each brand and put the remaining quarter bottles in the said katta.
Thereafter, IO covered the mouth of the sample bottles with a piece of
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:17:39
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 6 of 29
white cloth and sealed them with the seal of ‘VRS’. IO also sealed the katta
with the seal of ‘VRS’. Thereafter, IO seized the case property. Thereafter,
they returned to the PS. He deposed that he could identify the case
property, if shown to him. Copy of order of destruction of the case property
of the present case along with certificate was Ex.P-1. Sample bottles were
already Ex.P-2 (colly.). PW2 correctly identified the accused in the court.
09. During cross-examination by Ld. Counsel for accused, PW2 stated
that IO had received the secret information. He stated that he could not tell
whether the same was shared with the senior officers or not. He claimed
that they remained at the spot for about 1 or 1¼ hours. He further stated
that his statement was recorded at the PS on laptop. He deposed that he
could not tell whether seal handing over memo was prepared by the IO or
not. He further stated that the raiding team members had helped the IO in
the sealing and seizure of the case property. He further stated that all the
raiding team members had apprehended the accused. He could not tell
what kind of documents were prepared by IO. He admitted that the public
persons were passing by through the spot & shops and houses were also
situated there. He claimed that IO had requested 8-10 persons to join the
investigation but no one agreed and no notice was given to the public
persons who refused to join the investigation. He further claimed that the
public persons had not given their name and addresses. He further stated
that the seal after use was handed over to Ct. Heera Lal at about 10:00-
10:15 PM. He further stated that case property was taken to PS by E-
rickshaw. He further stated that they had not noted down the address and
Digitally signed
by Akriti
Mahendru
Akriti Date:
Mahendru 2024.12.23
16:17:45
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 7 of 29
name of the driver of e-rickshaw. He further stated that he did not
remember how many Form M-29 were filled by the IO. He further stated
that the distance between the spot and PS was about 1½ KM. He further
stated that tehrir was handed over to Ct. Heeral Lal for getting the FIR
registered. He further stated that he did not know whether arrival entry was
made in this regard. PW2 denied the suggestions put forth by Ld. counsel
for the accused namely;- that no raiding team was formed and accused was
not apprehended with the illicit liquor; or that no illicit liquor was
recovered from the possession of the accused; or that the case property was
falsely planted upon the accused; or that he was deposing falsely.
10. Ct. Kuldeep was examined as PW3 by the prosecution. He
produced register No.19 of the year 2021 and showed mud No. 2177, copy
of the same was Ex. PW3/A (OSR). PW3 also produced original Register
No.21 and showed road certificate No. 57/21/2021, Copy of the same was
Ex.PW3/B (OSR).
11. During the cross-examination by Ld. Counsel for accused, witness
admitted that he had not made any entry in the register No. 19.
12. SI Narender was examined as PW4 by the prosecution. He deposed
that on 04.06.2021, he was posted as ASI at PS Patel Nagar, New Delhi.
On that day, he alongwith HC Heera Lal, Ct. Ghanshyam, Ct. Randhir and
SI Vijay Raj Singh was on patrolling duty at DMS Road, Baljeet Nagar. At
about 09:15 PM, one secret informer informed them that one person might
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:17:51
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 8 of 29
bring illicit liquor and can be apprehended, if raid is conducted. Thereafter,
as per secret information, they went to Gali No.22B, Baljeet Nagar, where
they saw that one person was carrying a katta on his left shoulder. They
stopped him and checked the katta. Upon checking, one green bag was
taken out from the katta and the bag was found containing illicit liquor.
Upon further inquiry, accused disclosed his name as Anil. Thereafter, IO
interrogated the accused and checked the bag which contained 85 loose
quarter bottles out of which, 40 quarter bottles were of “Race Seven Metro
Liquor for Sale in Haryana Only, 180 ml”, 25 quarter bottles were of
“Santara for Sale in Haryana only 180 ml” & 20 quarter bottles were of
“Taja Santara for Sale in Haryana only 180 ml”. IO took out one sample
bottle of each brand and put the remaining quarter bottles in the said katta.
Thereafter, IO covered the mouth of the sample bottles with a piece of
white cloth and sealed them with the seal of ‘VRS’. IO also sealed the katta
with the seal of ‘VRS’. After use seal was handed over to HC Heera Lal.
Thereafter, IO seized the case property vide seizure memo, Ex.PW-1/A.
Subsequently, IO SI Vijay Raj prepared the tehrir and handed over the
same to HC Heera Lal for registration of FIR. IO also sealed the katta with
the seal of ‘VRS’. Seal after use was handed over to HC Heera Lal.
Thereafter, IO seized the case property vide seizure memo. Thereafter, IO
SI Vijay Raj prepared the tehrir and handed over the same to HC Heera Lal
for registration of FIR. HC Heera Lal went to the PS for registration of
FIR. After registration of FIR, HC Heera Lal and 2 nd IO ASI Anil came at
the spot. 2nd IO interrogated the accused. He claimed that IO/ ASI Anil
prepared the site plan at the spot but he did not remember at whose
Digitally signed
by Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:17:58 +0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 9 of 29
instance site plan was prepared. Accused was released after service of
notice u/s 41-A Cr.P.C. PW4 correctly identified the accused in the court.
PW4 deposed that he could identify the case property. Case property was
already Ex. P1 & Ex. P2 (colly).
13. During cross-examination by Ld. Counsel for accused, PW4 stated
that he had not informed any senior officer regarding the secret
information. He Voluntarily stated that IO SI Vijay Raj had informed about
the same. He further stated that secret informer had told about the physical
description of the accused to SI Vijay Raj and not to him. He stated that he
could not remember when HC Heera Lal returned at the spot after
registration of FIR. He further stated that IO had prepared only rukka in his
presence. He further stated that he did not remember the time taken by 1 st
IO SI Vijay Raj in the investigation. He admitted that the place of
apprehension of accused was a residential area. He conceded that no notice
was served to the public person who refused to join the investigation and
their names & addresses were also not recorded by the IO. He failed to
recall to whom seal was handed over after use. He further stated that no
handing over memo of seal was prepared. He further stated that he did not
remember at what place the accused was apprehended. At the stage, site
plan Mark PW-4/X1 was shown to the witness from the judicial file and
after seeing the same, witness failed to show the place of apprehension of
the accused. He further stated that site plan was prepared in his presence as
well as the presence of Ct. Ghanshyam, Ct. Randhir and SI Vijay Raj. He
further stated that he did not remember whether the IO had taken the
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:18:04
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 10 of 29
signature of the witnesses on the site plan. He further stated that he did not
remember at what time notice u/s 41-A Cr.P.C was served upon the
accused. He further stated that he left the spot at about 11:30 PM-12:00
AM. He further stated that they returned to the PS on foot. He further
stated that the distance between the PS and the spot was about 1 Km. PW4
denied the suggestions put forth by Ld. counsel for the accused namely;-
that he was a tutored witness and had not joined the investigation; or that
the site plan was not prepared at the spot and same was prepared while
sitting at the PS; or that accused was falsely implicated in the present case
and the case property had been falsely planted upon the accused; or that no
illicit liquor was recovered from the possession of the accused; or that case
property was falsely planted upon the accused; or that all the writing work
was done at PS; or that he was deposing falsely.
14. Ld. APP for State sought permission to re-examine the witness
regarding the fact of handing over the seal after use. Said permission was
granted. Witness stated that the seal after use was handed over to Ct. Heera
Lal.
15. During cross-examination conducted again by Ld. Counsel
for accused, PW4 stated that he did not remember the time when seal was
handed over to Ct. Heera Lal.
16. PW Hetram Meena was examined as PW5 by the
prosecution. He deposed that on 21.06.2021, he was posted as constable at
Digitally signed
PS- Patel Nagar. On that day, he collected three sealed sample bottles,
by Akriti
Mahendru
Akriti Date:
Mahendru 2024.12.23
State Vs. Anil Kumar FIR No. 206/2021 Page No. 11 of 29
16:18:16
+0530
sealed with the seal of ‘VRS’ along with Form M-29 and he deposited the
same at ITO, Excise Laboratory vide RC No. 57/21/21. The RC was
already Ex. PW3/B.
17. During cross-examination by Ld. Counsel for the Accused, PW5
stated that he left the PS on 21.06.2021 after about 10:00-11:00 Am. He
further stated that he made the DD entry regarding his departure but he did
not remember the number of the same. He further stated that he went in a
government vehicle but he did not remember the registration number of the
said vehicle. He further stated that he had not taken any expenses for his
visit as it was a government vehicle. He further stated that he returned to
the PS at about 02:00 PM. He claimed that he made the arrival entry
regarding the same but he did not remember the DD number. He denied the
suggestion that he never visited the Excise Laboratory at any point of time
or had never collected the sample bottle from the MHC(M). PW5 denied
the suggestion that he was deposing falsely.
18. PW HC Ghanshyam was examined as PW6 by the prosecution. He
deposed that on 04.06.2021, he was posted as Constable at PS Patel Nagar.
On that day, he was on beat duty and was doing patrolling alongwith ASI
Narender Singh, Ct. Randheer, Ct. Hira Lal and SI Vijay Raj Singh near
DMS Road, Patel Nagar. There a secret informer came to SI Vijay Raj
Singh and informed him that a suspicious person would be bringing illicit
liquor at Gali No. 22B, Baljeet Nagar. SI Vijay Raj Singh prepared a team
and he alongwith SI Vijay Raj and other team members went to Gali No.
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:18:23
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 12 of 29
22B, Baljeet Nagar. At around 09:40 PM a boy/accused was seen coming
in the gali, carrying a white plastic bag on his shoulder. SI Vijay Raj
stopped the boy and inquired from him about the contents of the bag to
which that boy/accused could not give any satisfactory answer. Thereafter,
the bag was checked by the team members and illicit liquor was found in
the bag. Total 85 quarter bottles were found in the bag, out of which 40
quarter bottles of 180 ml each were of “RACE-7, Metro Liquor for sale in
Haryana only”, 25 quarter bottles of 180 ml each of ” Santara for sale in
Haryana only” and 20 quarter bottles of 180 ml each of ” Taza Santara for
sale in Haryana only”. SI Vijay Raj took out a sample of each type of illicit
liquor and total 3 samples were taken out. The remaining 82 quarter bottles
were sealed in a white cloth pullanda sealed with the seal of VRS and the
sample of the quarter bottles were given serial No. Santara S1, Taza
Santara S2, Race-7 S3 and the plastic bag was given serial number as A-1.
The quarter bottles were seized vide seizure memo, Ex.PW1/A. Form M29
was prepared at the spot and thereafter the seal was handed over to Ct. Hira
Lal. SI Vijay Raj prepared tehrir/rukka, Ex.PW6/A and handed over the
same to Ct. Hira Lal for registration of FIR through DO concerned. After
the registration of FIR, CT. Hira Lal alongwith copy of FIR and original
rukka came back to the spot and handed over the same to ASI Anil. After
interrogation of the accused, ASI Anil issued notice u/s 41(1) Cr.P.C,
Ex.PW6/B to the accused in his presence and bound down the accused.
Thereafter, he alongwith ASI Anil and other team members returned to the
PS. Identification of the case property by the witness was not disputed by
Ld. counsel for accused. PW6 correctly identified the accused in the court.
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:18:30
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 13 of 29
19. During cross-examination by Ld. Counsel for the Accused, witness
stated that he reached the spot by beat patrolling. He further stated that the
secret informer had informed about the accused to ASI Vijay Raj, however,
he could not tell the exact distance from where the secret informer pointed
towards the accused. He conceded that ASI Vijay Raj had not made any
pointing out memo in his presence. He claimed that ASI Vijay Raj had
prepared seizure memo, M29 form and rukka in his presence. He admitted
that that his signature was not obtained on the abovementioned documents.
He further stated that all the team members helped ASI Vijay Raj in
counting quarter bottles of illicit liquor. He further stated that the accused
was apprehended in his presence, however, he did not remember who had
apprehended the accused. He further stated that he did not know whether
ASI Vijay Raj had prepared any handing over memo of the seal. He denied
the suggestion that no handing over seal memo was ever prepared by the
IO. He conceded that the spot was a crowded place. He claimed that the
IO/ASI had asked 2-3 public persons to join the investigation of the
present case, however, they refused to join. He further stated that neither
any notice was served to the public persons nor their names or addresses
were recorded. He further stated that he did not remember the exact time
when they finally left the spot. He further stated that no photography or
videography of the case property was done at the spot. He further stated
that IO had recorded his statement u/s 161 Cr.P.C at the spot and the same
was read over to him. He further stated that he did not remember whether
any staff member had come with a laptop at the spot. He further stated that
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:18:36
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 14 of 29
total two M-29 forms were present in the case file, one was the original
with the seal and other was photocopy of the same. He further stated that
he did not remember the time duration for which IO/ASI remained at the
spot. PW6 denied the suggestions put forth by Ld. Counsel for accused
namely;- that his statement was recorded at the PS after manipulation of
the same; or that nothing had been recovered from the possession of the
accused and the same was falsely planted upon the accused; or that no such
incident had ever happened as he deposed in his examination-in-chief and
all the documents were made while sitting in the PS; or that he was
deposing falsely.
20. PW SI Vijay Raj was examined as PW7 by the prosecution. He
stated that he was the first IO in the present case. He deposed that on
04.06.2021, he was posted as SI at PS Patel Nagar. On that day, he was on
patrolling duty along with ASI Narender, Ct. Ghanshyam, Ct. Hira Lal and
Ct. Randheer near Baljeet Ngar Sabji Mandi. At around 09:15 PM one
secret informer came and informed them that a suspicious person would be
coming with illicit liquor near his house at Gali No. 22B, Baljeet Nagar.
He gave the said information to the public persons present there and asked
them to join the raiding party/team however, they refused to join citing
personal reasons. After briefing the staff members, he made a raiding team
and he along with raiding team and secret informer went to Gali No. 22B,
Baljeet Nagar. The accused was coming towards House No. I-12 carrying a
plastic bag on his left shoulder and the secret informer pointed towards
him. Thereafter, he with the help of his team members, apprehended the
Digitally signed
by Akriti
Mahendru
Akriti Date:
Mahendru 2024.12.23
16:18:43
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 15 of 29
accused. He checked the plastic bag and on checking, a black bag
containing illicit liquor was found inside the said plastic bag. He took out
the black bag, on checking total 85 quarter bottles of 180 ML each of illicit
liquor were found including 40 quarter bottles of “RACE-7 for sale in
Haryana only” of 180 ml each, 25 quarter bottles of ” Santara for sale in
Haryana only” of 180 ml and 20 quarter bottle of 180 ml each of ” Taza
Santara for sale in Haryana only”. Thereafter, he took out a sample of each
kind of abovementioned quarter bottles and sealed the remaining 82
quarter bottles in the plastic bag with the Seal of VRS and the sample of
the quarter bottles were given serial number Santara S2, Taza Santara S1
and Race-7 S3. The quarter bottles were seized vide seizure memo was
Ex.PW1/A. He prepared Form M29 at the spot, Ex.PW7/A (colly).
Thereafter, he prepared tehrir/rukka, Ex.PW6/A and handed over the same
to Ct. Hira Lal for registration of FIR through DO concerned. After the
registration of FIR, ASI Anil came to the spot and he handed over the
accused alongwith the case property to him. He further deposed that the
further investigation was marked to ASI Anil and ASI Anil had prepared
the site plan at his instance, the Site plan was now Ex.PW7/B. PW7
correctly identified the accused in the court. PW7 deposed that he could
identify the case property. Case property was already Ex.P1 & Ex. P2
(colly).
21. During cross-examination by Ld. Counsel for the Accused, PW7
stated that he did not remember whether he had prepared any seal handing
over memo. He denied the suggestion that no handing over seal memo was
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:18:49
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 16 of 29
ever prepared by him. He further stated that the spot was a crowded place.
He claimed that he had asked 2-3 public persons to join the investigation of
the present case, however, they refused to join. He conceded that neither
any notice was served upon the public persons nor their names or addresses
were recorded. He further stated that he did not remember the exact time
when they finally left the spot. No photography or videography of the case
property was done at the spot. He further stated that he prepared seizure
memo and tehrir at the spot. He further stated that at around 10:40 PM, he
sent Ct. Heera Lal to the PS alongwith tehrir for registration of FIR and he
came back to the spot after about one hour. He denied the suggestion that
site plan was prepared by ASI Anil while sitting in the PS and because of
this his signatures were not obtained on the site plan. He further stated that
there are 3 copies of M-29 form available on record i.e. one original and
two carbon copies. He further stated that he prepared M-29 form at around
10:15-10:30 PM. He further stated that the secret informer pointed
towards the accused from about a distance of 8-10 steps. He further stated
that the secret informer remained with him for about 25-30 minutes and
left the spot after pointing towards the accused. He further stated that he
did not give any information about the secret informer to SHO concerned.
He further stated that he did not remember the specific team member who
had apprehended the accused. He further stated that the team members
helped him in seizure of the case property. He further stated that ASI Anil
alongwith Ct. Heera Lal reached the spot after one hour of registration of
the FIR. He further stated that ASI Anil recorded his statement u/s 161
Cr.P.C. at the spot, in the laptop which ASI Anil was carrying with him. He
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:18:56
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 17 of 29
further stated that he did not remember, the exact time when he finally left
the spot. PW7 denied the suggestions put forth by Ld. Counsel for accused
namely;-that his statement was recorded by ASI Anil in the PS and not at
the spot after manipulation of his statement; or that all the paper work was
done while sitting in the PS; or that no case property had been recovered
from the possession of the accused and the same was planted upon the
accused; or that he was deposing falsely.
22. PW ASI Anil was examined as PW8 by the prosecution. He
deposed that on 04.06.2021, he was posted at PS Patel Nagar as ASI and
on that day, the present case was handed over to him after registration of
FIR. He went to the spot and prepared the site plan, Ex. PW7/B.
Thereafter, he obtained the sealed case property from the first IO and
deposited the same in the Malkhan. He recorded the statement of Ct.
Mangal, Ct. Hira and Ct. Ghanshyam. He gave notice u/s 41A of Cr.PC to
the accused and released him. He deposited the sample bottles to excise
laboratory and obtained the result and attached the same with the case file.
Thereafter, he filed the charge-sheet in court.
23. During cross-examination by Ld. Counsel for the Accused, PW8
stated that he received the present FIR at about 11:30 PM. He further stated
that he had not made DD entry of his departure before leaving the PS. He
claimed that the case property was handed over to him at about 12:00 AM.
He further stated that he did not remember when the case property was
handed over to MHC(M). He further stated that he prepared the site plan at
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:01
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 18 of 29
the spot and recorded the statement of the witnesses at PS. He conceded
that there was no signature of complainant on the site plan. He further
stated that he did not remember at whose instance he prepared the site plan.
He further stated that he did not remember when he served notice u/s 41.A
Cr.P.C. upon the accused. He admitted that he had not mentioned the date
and time in the said notice. He also admitted that he had not mentioned the
date and time on the personal bond served upon the accused. He further
stated that he did not remember the time when he recorded the statement of
Ct. Mangal and Ct. Hira Lal. He further stated that he did not remember
the time when he sent the sample bottles to excise laboratory. PW8 denied
the suggestions put forth by Ld. Counsel for accused namely; that accused
had been falsely implicated in the present case; or that nothing had been
recovered from the possession of the accused; or that case property had
been falsely planted upon the accused due to which he did not remember
the time of preparation of documents; or that all the writing work was done
while sitting at PS; or that he was deposing falsely.
24. On 13.10.2022, the Accused admitted the genuineness of FIR
bearing No. 206/2021 dated 04.06.2021, PS- Patel Nagar, Ex. A1,
Certificate u/s 65B of Indian Evidence Act, Ex. A2 and report of Chemical
Examiner under Section 294 of Cr.PC, Ex. A3 consequently, the
examination of PW HC Mahender Kumar and Sh. Rajesh Joshi, Deputy
chemical examiner was dispensed with.
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:09
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 19 of 29
25. Thereafter PE was closed vide order dated 04.10.2024 and accused
was examined in the exercise of power under section 313 of the Code of
Criminal Procedure, 1973 on 14.11.2024. Accused pleaded innocence and
denied the allegations against him. He claimed that he had been falsely
implicated in the present case and nothing was recovered from his
possession. He claimed that the case property had been planted upon him.
26. Final arguments were addressed on behalf of the accused as well as
by the Ld. APP for the State.
27. During the course of final arguments, it was submitted by Ld. APP
for the State that prosecution has proved its case beyond reasonable doubt.
All the ingredients of section 33 (f) of the Delhi Excise Act, 2009 are
made out and in view of the presumption under Section 52 of the Act the
accused ought to be convicted.
28. On the other hand, Ld. Counsel for the accused argued that the
prosecution has not been able to establish its case beyond reasonable doubt
therefore, the benefit of doubt must inure to the Accused. It was further
argued on behalf of the Accused that he has been falsely implicated in the
present case and nothing was recovered from his possession. The illicit
liquor was planted upon the Accused which is apparent from the fact no
public witness has been examined by the prosecution to prove the fact of
recovery from the possession of the Accused. Ld. Counsel further argued
that the case property was tampered with, which is apparent from the fact
that no handing over memo of the seal was prepared. He pointed out the
Digitally signed
by Akriti
Mahendru
Akriti
State Vs. Anil Kumar FIR No. 206/2021 Page No. 20 of 29
Date:
Mahendru 2024.12.23
16:19:18
+0530
contradictions in the testimony of the witnesses to argue that prosecution
has failed to prove its case beyond reasonable doubt.
29. Before sifting and weighing the competing submission in the
adumbral of evidence tendered on record, it is deemed germane to
reproduce the applicable provisions of the Delhi Excise Act, 2009, namely:
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 lakh rupees.
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:24
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 21 of 29
(Section 52)
52. 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.
30. Now this court shall proceed to deal with the pleas raised by the
Accused. The first plea raised by the Accused is that no illicit liquor bottles
were recovered from his possession and he has been falsely implicated in
the present case which is evident from the fact that no independent witness
was examined by the prosecution to establish his guilt. The allegations
against the accused, as per the prosecution version, are that he was found
in possession of liquor bottles without any permit or license. In order to
prove the charge against the Accused the burden is upon the prosecution to
prove the fact of recovery of the illicit liquor bottles from the possession of
the Accused. To discharge the aforementioned burden, prosecution has
essentially relied upon the presumption laid down in section 52 of the
Delhi Excise Act, 2009 and on the strength of the same it has been averred
that once the charge under section 33(f) is framed against the Accused the
presumption would come into play and the burden of proving the contrary
would be shifted upon the Accused. Perusal of section 52 reveals that the
Digitally
signed by
Akriti
State Vs. Anil Kumar FIR No. 206/2021 Page No. 22 of 29
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:30
+0530
presumption with respect to offence under section 33 can be drawn only if
the Accused is unable to satisfactorily account for the possession of the
intoxicant, still, utensil, implement or apparatus (liquor bottles in the
instant case). A prerequisite for raising the presumption against the
Accused is the successful establishment of the fact of recovery of the
alleged articles from the possession of the Accused. It is imperative for the
prosecution to prove the fact of recovery of the articles from the possession
of the Accused before it can claim the benefit of the presumption.
Therefore, the onus is still on the prosecution to prove that the illicit liquor
was in fact recovered from the possession of the accused.
31. For establishing the factum of recovery, the prosecution examined
five witnesses. The recovery was effected by PW1, PW2, PW4, PW6 and
PW7 later on the Accused along with the seized articles was handed over
to the IO/PW8. All the witnesses examined by the prosecution during the
course of trial, including the complainant, are police witnesses. No public
witness was admittedly joined by the police at the time of recovery. PW1,
PW2, PW4, PW6 and PW7 had all stated in their testimony that public
witnesses were not made a part of the investigation despite availability.
During the course of their cross examination the aforementioned witnesses
had admitted that the spot was a crowded place and many public persons
were available there but no public person was joined as a witness, also no
written notice was served upon any public person who refused to join the
investigation. It was deposed by PW2 in his cross-examination that IO had
Digitally
asked 8-10 public persons to join the investigation but no one agreed.
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:36
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 23 of 29
Subsequently, PW6 disclosed that IO asked 2-3 public persons to join the
investigation but to no avail. The First IO/ PW7 SI Vijay Raj had also
affirmed that the spot was a public place and public persons were available
there, he claimed that he had asked 2-3 public persons to join investigation,
however they refused and left without revealing their names and addresses,
no notice was admittedly served upon any public person for joining the
investigation. There was consistency in the statement of all the material
witnesses regarding non joinder of any public person as witness either
during the recovery or during the investigation. It is not the case of the
prosecution that there were no public persons available at the spot who
could be joined as witnesses rather all the material witnesses have stated
that public person were available there. No notice was served upon the
public persons under section 160 CrPC who refused to join the
investigation. No reason has been given by any of the material witnesses
for non-joinder of any public person as witnesses, either at the time of
recovery or at the time of investigation. No plausible explanation has come
forth for non-joinder of public persons as witnesses or for non-service of
notice u/s 160 CrPC upon them for refusal.
32. The recovery witness examined by the prosecution in the present
case are police witnesses that is PW1, PW2, PW4, PW6 and PW7 who are
interested in the success of the prosecution case and therefore, the
possibility of them being guided by extraneous factors, other than truth,
cannot be ruled out. The police witnesses cannot be straightaway termed as
Digitally
unreliable witnesses, however, when there is a possibility of joining any
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:43
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 24 of 29
public witness in the investigation and still no genuine efforts are made to
join the independent person as witness, then the testimony of the police
witness does not lend sufficient credence/reliability, unless it is
corroborated by independent material witness. In view of above discussion,
it is duly established that genuine efforts were not made by the IO of the
case to join the public witness. The non-joining of the public witness at the
time of alleged recovery of the article raises doubts on the story of the
prosecution. In this context the observations of the Hon’ble High Court of
Delhi in the celebrated judgment of Pawan Kumar v. Delhi Administration
reported as 1989 Cri.LJ 127 spring to mind which reads as under:-
“Admittedly, there is no impediment in believing the
version of the Police officials but for that the prosecution
has to lay a good foundation. At least one of them should
have deposed that they tried to contact the public
witnesses or that they refused to join the investigation.
Here is a case where no effort was made to join any public
witness even though number of them were present. No
plausible explanation from the side of the prosecution is
forthcoming for not joining the independent witnesses in a
case of a serious nature like the present one. It may be that
there is an apathy on the part of the general public to
associate themselves with the Police raids or the
recoveries but that apart, at least the I.O. should have
made an earnest effort to join the independent witnesses.
No attempt in this direction appears to have been made
and this, by itself, is a circumstance throwing doubt on the
arrest or the recovery of the knife from the person of the
accused.”
33. The aforementioned observations of the Hon’ble high court of
Delhi were reiterated in the case of Anoop Joshi V/s State, reported as
Digitally signed
by Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:50 +0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 25 of 29
1992 (2) C.C. Cases 314 (HC), wherein Hon’ble High Court of Delhi has
observed as under:
”18. It is repeatedly laid down by this Court that in such cases it
should be shown by the police that sincere efforts have been
made to join independent witnesses. In the present case, it is
evident that no such sincere efforts have been made,
particularly when we find that shops were open and one or two
shopkeepers could have been persuaded to join the raiding
party to witness the recovery being made from the appellant. In
case any of the shopkeepers had declined to join the raiding
party, the police could have later on taken legal action against
such shopkeepers because they could not have 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”.
34. The second plea raised by the Accused is three pronged namely;- a)
that no departure or arrival entry record has been filed to show that PW1,
PW2, PW4, PW6 and PW7 were on patrolling duty on the said date, b) that
no handing over memo was prepared while handing over the seal, c) FIR
number has been mentioned on the documents which were purportedly
prepared before registration of FIR, thereby raising further doubt over the
already weak prosecution story. The present case rests entirely on the alleged
recovery of case property, i.e., illicit liquor, from the possession of the
accused by police officials i.e., PW1, PW2, PW4, PW6 and PW7, who were
on patrolling duty at the relevant time and place, as per the prosecution story.
Police officials are under a statutory duty to mark their departure and arrival
in the register kept in the police station for the purpose as per the Punjab
Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the
Punjab Police Rules, 1934, which reads as under:
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:19:56
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 26 of 29
“22.49 Matters to be entered in Register No. II The following
matters shall, amongst others, be entered: “(c) The hour of arrival
and departure on duty at or from a police station of all enrolled
police officers of whatever rank, whether posted at the police
station or elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or prior to the
departure of the officer concerned and shall be attested by the
latter 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.”
35. Since public persons were not made a part of investigation, the
departure entry of the aforesaid police officials i.e., PW1, PW2, PW4, PW6
and PW7 who were on patrolling duty at the time when they apprehended the
accused with case property, becomes a vital piece of evidence. However, no
such daily diary entry regarding departure of PW1, PW2, PW4, PW6 and
PW7 is available on record. Even during the course of their cross examination
the witnesses failed to recall the DD entry vide which they were on patrolling
duty, though this omission is not fatal to the case of the prosecution but it
creates a loophole in the prosecution story which could have been plugged by
producing the relevant record.
36. Now coming to part b) of the plea. According to the testimonies of
the witnesses, the case property was sealed with the seal of PW7 SI Vijay Raj
and the same was handed over to PW1 Ct.Heera Lal. However, neither any
handing over memo of seal was prepared regarding the same nor any entry
was made in the Malkhana regarding the deposit of seal. This creates a
loophole in the chain of custody of the case property. Further, according to
testimony of PW5 the case property was deposited in the excise lab on
Digitally
signed by
Akriti
Akriti Mahendru
Mahendru Date:
2024.12.23
16:20:02
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 27 of 29
21.06.2021 whereas it was seized on 04.06.2021, there is a delay of 16 days
in depositing the case property in the lab. Therefore, the possibility that the
case property may have been tampered with cannot be ruled out.
37. Insofar as plea c) is concerned, perusal of the evidence on record
reveals that the documents i.e., seizure memo (Ex.PW-1/A) and Form M- 29
(Ex.PW7/A) were admittedly prepared before the rukka was sent to the Police
station for registration of FIR meaning thereby, that the FIR was registered
subsequent to the preparation of the aforementioned documents therefore the
FIR number would have come to the knowledge of the witnesses only after a
copy of the FIR was brought on the spot by PW1. Thus, ordinarily the FIR
number should not have been mentioned on the seizure memo or Form-29,
which purportedly came into existence before the registration of the FIR.
Conversely, both these documents not only bear the FIR number but also the
case details. No explanation has come forth as to how the FIR number and the
case details have appeared on seizure memo (Ex.PW-1/A) and Form M-29
(Ex.PW7/A)). PW7/IO in is testimony had stated that seizure memo was
prepared by him and he had filled the Form M-29 at the spot before preparing
the tehrir/rukka, (Ex.PW6/A) which was handed over to PW1 HC Heera Lal
for registration of FIR. This leads to an inference that either the said
documents were prepared later or the. FIR had been registered prior to
preparation of the documents. In both the situations a shadow of doubt is cast
over the prosecution story, the benefit of which must accrue to the Accused.
38. It is a settled proposition of criminal law that prosecution is obliged
to prove its case beyond reasonable doubt by leading reliable, cogent and
Digitally signed
by Akriti
Mahendru
Akriti Date:
Mahendru 2024.12.23
16:20:17
+0530State Vs. Anil Kumar FIR No. 206/2021 Page No. 28 of 29
convincing evidence. In order to prove its case, prosecution is supposed to
stand on its own legs and it cannot derive any benefit whatsoever from the
weaknesses, if any, of the defence of the Accused. Burden of proof of the
version of the prosecution in a criminal trial throughout the trial is on the
prosecution and it never shifts on to the Accused. In the instant case, the
prosecution has miserably failed to discharge that burden even on the
touchstone of preponderance of probabilities, leave alone beyond reasonable
doubt.
39. Upon due circumspection of the totality of foregoing facts and
circumstances, including but not limited to scrutiny of material available on
record in the adumbral of the legal position governing the field, this Court is
of the considered opinion that the prosecution could not prove beyond
reasonable doubt that the illicit liquor was recovered from the possession of
the Accused which is a sine qua non for commission of offence under section
33(f) of the Delhi Excise Act,2009. Having observed so, this Court hereby,
acquits the Accused Anil Kumar for the commission of offence under section
33(f) of the Delhi Excise Act, 2009, complained of in the instant case FIR.
Announced in open court Digitally
signed by
on this 23 th day of December, 2024 Akriti
Akriti Mahendru
(This judgment contains 29 pages Mahendru Date:
and each page is signed by me) 2024.12.23
16:20:28
+0530
(Akriti Mahendru)
Addition Chief Judicial Magistrate
(West)/THC/Delhi
23.12.2024.
State Vs. Anil Kumar FIR No. 206/2021 Page No. 29 of 29