Delhi District Court
State vs Nimmo Nagia on 22 January, 2025
1
IN THE COURT OF SH. SAURABH GOYAL,
JUDICIAL MAGISTRATE FIRST CLASS01, DWARKA COURTS,
DELHI
State Vs. : Nimmo Nagia
FIR No : 455/2023
U/s : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
1. Criminal Case No. : 22843/2024
2. Date of commission of offence : 28.07.2023
3. Date of institution of the case : 05.06.2024
4. Name of the complainant : State
5. Name of accused & parentage : Nimmo Nagia W/o Sanjay
Kumar
6. Offence complained or proved : Section 33 Delhi Excise
Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 22.01.2025
9. Final order : Acquittal
10. Date of final order : 22.01.2025
JUDGMENT
1. The accused Nimmo Nagia is facing trial for offence U/S 33 Delhi
Excise Act with the allegations that on the intervening night of 27th and 28th July
2023 at H. No. RZP22, Raj NagarII, Palam Colony, Opposite Dwarka PS near
DTS Bus Stand, within jurisdiction of PS Palam Village, the accused was found
in possession of one sack containing total 200 Plastic quarter bottles of illicit
liquor having label fresh motta masaledar desi sharab, for sale in Haryana only
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.01.22
15:43:53 +0530
2
180 ml each, without any permit or license. The criminal law was set into
motion by registration of FIR against the accused and investigation into the case
began. After completion of the investigation, the present chargesheet was filed
for conducting trial of the accused for the alleged offence.
2. After taking cognizance of the offence, the copies of chargesheet was
supplied to the accused in compliance of section 207 Cr.P.C. The arguments on
charges were heard and charge for offence U/S 33 Delhi Excise Act was framed
against accused Nimmo Nagia on 17.08.2024. The accused pleaded not guilty
and claimed trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined
five prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. were conducted wherein accused
admitted the factum of registration of FIR no. 455/2023 alongwith certificate u/s
65 B IEA as Ex. A1 (colly), RC No. 182/21/23 as Ex. A2 and Excise Result is
Ex A3, pursuant to the admission made by accused of these documents,
witnesses at Sr. No. 1, 9 & 10 were dropped from the list of witnesses.
5. Ld. APP for the State has argued that prosecution witnesses have
supported the prosecution case and their testimony has remained unrebutted. It
has been further argued that on the combined reading of the testimony of all the
prosecution witnesses, offence U/S 33 of Delhi Excise Act has been proved
beyond doubt.
6. Per contra, Ld. Counsel for accused person has stated that there is no
legally sustainable evidence against the accused person and that the accused
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed
SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:43:59 +0530
3
person has been falsely implicated by the police officials and even recovery of
illicit liquor has not been proved from the possession of accused person as no
public witnesses were joined by the police officials during investigation and
recovery proceedings. It is further argued that due to the lacunae and
incoherency in the story of the prosecution, the accused person be given the
benefit of doubt and are therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and
defence, let us discuss the testimonies of the material prosecution witnesses in
brief.
8. PW1 HC Ashok is the complainant in the present case. He deposed that
on 27.07.2023 he was posted as HC at PS Palam Village. On that day, he along
with SI Amit Jaglan, PSI Mahesh, Ct. Hans Raj were on beat patrolling duty at
Beat NO.4 and while they reached near H No. RZP22, Raj nagar Part II,
opposite old PS Dwarka DTC Bus Stand, they saw that outside the said house
many public persons were gathered and also saw that public persons coming out
of the said house having liquor in their hands. On Suspicion they tried to enter
the said house but ladies inside the said house did not open the gate. Thereafter,
they called W/Ct. Resham at the spot from the PS and thereafter, she got the
gate of the said house opened and on checking the said house, one plastic white
katta was found from the bathroom inside the said house containing 200 ADS
Fresh Mota Masaledare Desi Sharab for sale in Haryana of 180 ML each were
recovered. Upon inquiry the name of said lady was revealed as Nimmo Nagia
W/o Sh. Sanjay Kumar. One quarter bottle was taken out as sample and its
mouth were tied with the white cloth and was sealed with the seal of AK. The
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed
SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:44:06 +0530
4
remaining 199 quarter bottles were kept in the said white katta and the mouth of
the same was tied with white cloth and was scaled with seal of AK. The seal
after use was handed over to Ct. Hans Raj. Thereafter, he prepared form M 29 at
the spot Ex.PW1/A and prepared the seizure memo of the case property vide
memo Ex. PW1/B. Thereafter, he prepared Tehrir rukka Ex. PWI/C and handed
over the rukka to Ct. Hans Raj who went to the PS and got the present case FIR
registered and came back at the spot along with copy of FIR and ASI Naresh to
whom further investigation was marked. Thereafter, he handed over the relevant
documents along with seized case property and accused to ASI Naresh/IO.
Thereafter, ASI Naresh prepared the site plan at his instance Ex.PWI/D.
Thereafter, ASI Naresh served U/s 41 A Cr.P.C upon the accused, recorded
disclosure statement of accused Ex. PW1/E and released the accused on
furnishing of Pabandinama. During investigation his statement U/s 161 Cr.P.C
recorded. Accused was correctly identified by witness in the court. The identity
of case property is also not disputed by Ld. Defence counsel.
9. PW2 SI Amit Jaglan was accompanied with PW1 HC Ashok and
deposed on the same lines of PW1. Thus testimony of PW2 SI Amit Jaglan is
not being reproduced to avoid repetition.
10. PW3 SI Mahesh was accompanied with PW1 HC Ashok and deposed
on the same lines of PW1. Thus testimony of PW2 SI Amit Jaglan is not being
reproduced to avoid repetition.
11. PW5 ASI Naresh Kumar is IO in this case. He deposed that on
28.07.2023 he was posted as ASI at PS Palam Village. On that day, after the
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed
SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:44:13 +0530
5
registration of the present case FIR, further investigation of the present case was
marked to him. He went to the spot i.e. H NO. RZP 22 Raj Nagar, Part II,
Opposite Old Dwarka Police Station near DTC Bus stand, Palam, where HC
Ashok along with other police officials met him. HC Ashok handed over the
relevant documents along with seized case property and accused to him.
Thereafter, he prepared the site plan at instance of HC Ashok ie. Ex.PW1/D.
Thereafter, ASI Naresh served U/s 41 A Cr.P.C upon the accused i.e. Ex.
PW5/A, recorded disclosure statement of accused Ex. PW1/E and released the
accused on furnishing of Pabandinama vide Ex. PW5/B. During investigation
he recorded statement of witnesses U/s 161 Cr.P.C recorded. The identity of
accused as well as the case property is not disputed by Ld. Defence counsel.
12. PW4 Ct. Ravinder has deposed that on 14.12.2023, he was posted as Ct.
at PS Palam Village. On that day MHCM (CP) handed over him seized samples
vide RC NO. 182/21/23 dated 14.12.2023 for depositing the same with Excise
Laboratory, ITO. He deposited the same with Excise Laboratory, ITO and
obtained it’s receiving on the aforesaid RC and submitted the RC with the
MHCM.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
13. Statement of the accused Nimmo Nagia under Section 281/313 Cr.P.C. was
recorded separately on 12.12.2024 in which all the incriminating circumstances
appearing in evidence were put to her. The accused controverted and denied the
allegations leveled against her and stated that she has been falsely implicated in
the case. Accused further opted to not lead evidence in her defence.
FIR No. 455/2023 St. Vs. Nimmo Nagia Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2025.01.22 15:44:20 +0530 6
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
14. I have bestowed my thoughtful consideration to the rival submissions
made by both the parties. In the present case, the accused has been indicted for
the offence U/S 33 of Delhi Excise Act. In order to prove the liability of
accused under Section 33 of the Delhi Excise Act, the prosecution must
establish the fulfillment of all the essential ingredients of the offence. The
contents of Section 33 of the Delhi Excise Act are reproduced as follows:
“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 license, 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 SAURABH
SAURABH GOYAL
GOYAL Date:
2025.01.22
15:44:29 +0530
FIR No. 455/2023 St. Vs. Nimmo Nagia
7
i). Doubtful seziure memo and form M29.
15. A careful reading of the testimony of PW1, 2, 3 & 5 reflects that even
before the Rukka was prepared, the case property i.e. illicit liquor was seized
vide Seizure memo Ex. PW1/B and then, Rukka was prepared and thereafter,
upon registration of FIR, PW5 ASI Naresh Kumar prepared the spot map and
conducted further investigation. The narration of such a chronology of events
leads to the irresistible conclusion that the seizure memo of the liquor was
prepared, prior to registration of the FIR. Accordingly, it follows that the
number of the FIR could not have been mentioned on the seizure memo as the
same was prepared prior to registration of FIR however, quite surprisingly,
perusal of the seizure memo reflects the mentioning of the full particulars of the
FIR thereupon, which fact has remained unexplained on behalf of the
prosecution and no explanation from the prosecution is forthcoming as to how
the FIR number surfaced on the document which was prepared prior to the
registration of the FIR. This fact casts a fatal doubt upon the case of
prosecution.
16. At this stage, reference may be made to the decision of the Hon’ble High
Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127,
wherein it was observed in paragraph 5 as follows:
“…Learned counsel for the state concedes that immediately after
the arrest of the accused, his personal search was effected and the
memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the
knife was prepared in the presence of the witnesses. After that, the
ruqa Ex.PW11/F was sent to the Police Station for the registration
of the case on the basis of which the FIR, PW 11/G was recorded.
The F.I.R. is numbered as 36, a copy of which was sent to the I.O.
after its registration. It comes to that the number of F.I.R. 36 came
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.01.22
15:44:35 +0530
8to the knowledge of the I.O. after a copy of it was delivered to him
at the spot by a constable. In the normal circumstances, the F.I.R.
No. should not find mention in the recovery memo or the sketch
plan which had come into existence before the registration of the
case. However, from the perusal of the recovery memo, I find that
the FIR is mentioned whereas the sketch plan does not show the
number of the FIR. It is not explained as to how and under what
circumstances the recovery memo came to bear the F.I.R. No.
which had already come into existence before the registration of
the case. These are few of the circumstances which create a doubt,
in my mind, about the genuineness of the weapon of offence alleged
to have been recovered from the accused…”
17. The aforesaid ruling of the Hon’ble High Court of Delhi squarely applies
to the facts in the present case as well, which leads to only one of the either
inference, that is, either the FIR was registered prior to the alleged recovery of
the illicit liquor, or that the said document was prepared later in point of time. In
either of the scenarios, a dent is created in the version of the prosecution, the
benefit of which must accrue to the accused.
18. Since in the present case, 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 the possibility of false implication of the accused persons
under the provisions of Excise Act cannot be ruled out at the instance of the
police.
ii). The nonjoining of any independent / public witness.
19. It is evident from the record that no public witness to the recovery of the
liquor has been either cited in the list of prosecution witnesses or has been
examined by the prosecution. Apparently, PW1 HC Ashok has deposed during
his cross examination that he did not record statement of any public persons. As
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.01.22
15:44:42 +0530
9
apparent from record, no notice was served to such public persons. Thus, it is
not the case of prosecution that public witnesses were not available at the spot.
However, from a perusal of the record, no serious effort for joining public
witnesses appears to have been made by the investigating officer. These facts
are squarely covered by the ruling of the Hon’ble High Court of Delhi in the
case titled as, Anoop Joshi v State 1992 (2) C.C. Cases 314 (HC), wherein it
was observed as under:
“…18. It is repeatedly laid down by this Court 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 evidence
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…”
20. Further, in a case law reported as Roop Chand v. The State of Haryana,
1999 (1) C.L.R. 69, Hon’ble Punjab & Haryana High Court held as under:
“…The recovery of illicit liquor was effected from the possession of
the petitioner during noon time and it is in the evidence of the
prosecution witnesses that some witnesses from the public were
available and they were asked to join the investigation. The
explanation furnished by the prosecution is that the independent
witnesses were asked to join the investigation but they refused to do
so on the ground that their joining will result into enmity between
them and the petitioner…”
Digitally signed
by SAURABH
SAURABH GOYAL
GOYAL Date: 2025.01.22
15:44:47 +0530
FIR No. 455/2023 St. Vs. Nimmo Nagia
10
21. It is well settled principle of the 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 as stated by PWs,
admittedly the independent witnesses were available at the time of recovery but
they did not join 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. 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 IO must have proceeded against them under the relevant
provision of law. The failure to do so by the police officer is suggestive of the
fact that the explanation for nonjoining the witnesses from the public is an
afterthought and is not worthy of credence. All these facts taken together make
the prosecution case highly doubtful.
22. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to
the aforesaid finding, by providing that whenever any search is made, two or
more independent and respectable inhabitants of the locality are required to be
made witnesses to such search, and the search is to be made in their presence.
Under Section 100(8) Cr.P.C, refusal to be a witness can render such non
willing public witness liable for criminal prosecution. Despite the availability of
such a provision, no sincere attempts were made by the police to join witnesses
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.01.22
15:44:52 +0530
11in the present case. Therefore, noncompliance of the mandatory provisions of
law, even though public witnesses were easily available in the vicinity, makes
the prosecution version highly doubtful.
23. This Court is conscious of the legal position that nonjoining of
independent witnesses cannot be the sole ground to discard or doubt the
prosecution case, as has been held in Appabhai and another v. State of
Gujarat, AIR 1988 SC 696. However, evidence in every case is to be shifted
through in light of the varied facts and circumstances of each individual case.
As discussed above and hereinafter, the testimony of the police witnesses in the
present case is not worthy of credit. In such a situation, evidence of an
independent witness would have rendered the muchneeded corroborative value,
to the otherwise uncompelling case of the prosecution.
iii). Possibility of misuse of seal of the investigating officer.
24. As per the prosecution story, after preparing seizure of the case property
and the samples of illicit liquor with seal of ‘AK’, the aforesaid seal was handed
over to Ct. Hans Raj. This fact cannot be ignored that Ct. Hans Raj was a
recovery witness and had apprehended the accused and was subsequently, a part
of the investigation in the present case. Thus, the seal was not handed over to
any independent witness. There is nothing on record to suggest that PW1 HC
Ashok had made efforts to handover the seal to any independent witness.
Further, no taking over memo is on record to show the genuineness of fact of
actual taking over of seal by Ct. Hans Raj from PW1 HC Ashok. In such a
factual backdrop, since the seal was given to Ct. Hans Raj, the seal remained
with the police officials of the same police station and therefore, the possibility
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed
SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:44:58 +0530
12
of tampering with the case property cannot be ruled out. Moreover, it is not
even the case of the prosecution that the seal was not within the reach of the IO
and thus, there was no scope of tampering of case property.
25. In this regard, judgment in case titled as Ramji Singh v State of Haryana
2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed
in paragraph 7 that:
“…The very purpose of giving seal to an independent person is to
avoid tampering of the case property. It is well settled that till the
case property is not dispatched to the forensic science laboratory,
the seal should not be available to the prosecuting agency and in
the absence of such a safeguard the possibility of seal, contraband
and the samples being tampered with cannot be ruled out. In the
present case, the seal of Investigating OfficerHoshiar Singh
bearing impression HS was available with Maha Singh, a junior
police official and that of Deputy Superintendent of Police
remained with Deputy Superintendent of Police himself. Therefore,
the possibility of tampering with seals as well as seized contraband
and samples cannot be ruled out…”
26. Similarly, Hon’ble High Court of Delhi in Safiullah v. State, (1993) 49
DLT 193, had observed:
“9. … The seal after use were kept by the police officials themselves
therefore the possibility of tempering with the contents of the sealed
parcel cannot be ruled out. It was very essential for the prosecution
to have established from stage to stage the fact that the sample was
not tempered with. The prosecution could have proved from the
CFSL form itself and from the road certificate as to what articles
were taken from the Malkahana. Once a doubt is created in the
preservation of the sample the benefit of the same should go to the
accused…” Digitally signed
SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:45:03 +0530FIR No. 455/2023 St. Vs. Nimmo Nagia
13
27. It is nowhere the case of the prosecution that the seal after use was handed
over to any of the independent witness. In view of discussion made above, the
conclusion which can be arrived that the seal remained with the Investigating
Officer or with the other member of the raiding party therefore the possibility of
interference or tempering of the seal and the contents of the parcel cannot be
ruled out. Thus, in light of the aforesaid discussion, the possibility of misuse of
seal and tampering of case property cannot be ruled out.
iv). Other infirmities in the prosecution case.
28. In the present case, all the witnesses are police official and no efforts
what so ever have been made for associating public persons during the recovery
proceedings. Further, no efforts have been made to join any public witness and
the place of recovery was also near a public place thus, the witnesses must have
been easily available and no explanation has been given as to why no efforts
were made for joining public witnesses during investigation.
29. In view of the discussion made above, it is clear that the prosecution has
miserably failed to prove the allegations levelled against the accused, more
specifically, the recovery of the alleged illicit liquor is not proved beyond
reasonable doubt. Therefore, this Court hereby accords the benefit of doubt to
the accused person and holds the accused person Nimmo Nagia not guilty
of commission of the offence in question. Accused Nimmo Nagia is thus,
acquitted of the offence U/S 33 of Delhi Excise Act.
30. The bail bonds, if any furnished persons at the time of commencement of
trail stands cancelled. Surety, if any stands discharged. Documents, if any shall
be returned to its rightful owner as per rules. Endorsement, if any stands
FIR No. 455/2023 St. Vs. Nimmo Nagia
Digitally signed
SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:45:09 +0530
14
canceled. Case property if any, shall be disposed of after expiration of period to
assail this judgment and in case of appeal, as per the directions of Ld. Appellate
Court. Case file be consigned to record room after due compliance.
Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.01.22
15:45:13 +0530
Announced in the open court on (Saurabh Goyal)
this day i.e. 22th January, 2025 JMFC01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 14 pages and each page bears
my signatures. SAURABH by
Digitally signed
SAURABH
GOYAL
GOYAL Date: 2025.01.22
15:45:16 +0530
(Saurabh Goyal)
JMFC01 South West District, Dwarka,
New Delhi
FIR No. 455/2023 St. Vs. Nimmo Nagia
[ad_1]
Source link