Delhi District Court
State vs Awdhesh@Love on 21 January, 2025
IN THE COURT OF MS. JYOTI NAIN
JUDICIAL MAGISTRATE FIRST CLASS-07: ROHINI COURTS: DELHI.
FIR No. 219/2018
U/s 33/38/58 of Delhi Excise Act
PS: Swaroop Nagar
State vs. Avdesh @ Love S/o Darshan Singh
Date of Institution of case:-26.07.2021
Date of Judgment reserved:-21.01.2025 (at 11:30 am)
Date on which Judgment pronounced:-21.01.2025 (at 03:30 pm)
JUDGMENT
Case Number : 5517/2021 CNR Number : DLNT020080422021 Date of Commission : 18.06.2018 of offence Name of the : Ct. Yogesh, No 2763/NW. complainant
Name and address of : Avdesh @ Love S/o Darshan Singh
the accused
Offence complained : 33/38/58 of Delhi Excise Act
of
Plea of accused : Not guilty
Final Order : Acquitted
JYOTI Digitally signed
by JYOTI NAIN
Date: 2025.01.21
NAIN 16:11:54 +0530
FIR No. 219/2018 State vs. Avdesh @ Love 1 of 13
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on
18.06.2018, at about 05:35 pm, at Maruti Showroom Service Road, near
Nanglipoona, Swaroop Nagar, Delhi within the jurisdiction of Police Station Swaroop
Nagar, accused was found carrying illicit liquor in the vehicle bearing
no.UP-16T-4613 without any permit or license. Thus, according to prosecution,
accused committed an offence punishable under Section 33/38/58 of The Delhi
Excise Act, 2009. Thereafter, upon investigation statements of witnesses were
recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C.
was filed under section 33/38 of the Delhi Excise Act, 2009 of the prescribed duty.
3. Copy of charge sheet and annexed documents were supplied to the
accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused was framed
under section U/s 33/38/58 of the Delhi Excise Act, 2009 by the Ld. Predecessor,
vide order dated 13.01.2023. Thereafter, accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined four witnesses.
6. PW1 is HC Chandar pal No. 3829/DAP present posting at 6 th Battalion,
CPR Kalkaji, New Delhi.
He deposed, that on 18.06.2018, he was posted at PS Swaroop Nagar as
a constable. He alongwith Ct. Yogesh were on patrolling duty. One secret informer
met them at Maruti Showroom Nangli Poona Service Road, Swaroop Nagar, Delhi
and informed them that one truck would be passed at service road containing illicit
liquor and the Truck number was UP-16T-4613 and if raid would be conducted they
JYOTI Digitally signed by
JYOTI NAIN
NAIN Date: 2025.01.21
16:12:00 +0530
FIR No. 219/2018 State vs. Avdesh @ Love 2 of 13
can apprehend the accused persons. After getting the information, when they were
patrolling at Nangli Poona Service Road then secret informer had given signal to
them when the said Truck was passing then Ct. Yogesh had given signal to the driver
of the truck to stop the truck then thereafter, the driver of truck had parked the truck
at the corner of the road. Ct. Yogesh had asked the driver of the truck that he wished
to inspect the said truck. When Ct. Yogesh and he were opened the lock of Truck then
they found carton boxes and after checking the said carton box, they found illicit
liquor bottles inside the boxes. Ct. Yogesh had shared the present information to the
duty officer of the PS. After that HC Saroj Kumar reached at the spot. After checking
the carton boxes, it were around 160 carton boxes in number. HC Saroj Kumar/IO
had separated the 152 carton boxes of separate brand and 8 carton boxes of several
brand. IO had collected the two sample out of 152 carton boxes. IO had taken one
sample out of 8 carton boxes. IO had sealed the 03 sample bottles tiding the mouth of
the same with the white clothes with the seal of SK. IO had sealed the rest of the
bottles of illicit liquor in white plastic kattas and sealed the same with the seal of SK.
The said 152 carton boxes are for sale in Arunachal Pradesh only mentioned upon it,
he does not remember the exact label and what was mentioned on the said label. Rest
of the 8 carton boxes of illicit liquor were for sale in Punjab only, however, he does
not remember the exact label and what was mentioned on it. IO prepared the seizure
memo of said illicit liquor which is already marked X and exhibited as Ex.PW-1/A.
IO recorded the statement of Ct. Yogesh and prepared the Tehrir.
PW1 HC Chander Pal admitted in his cross-examination conducted by Ld. APP
for the State that “It is correct that total 160 gatta pettis were recovered from the
vehicle bearing No. UP 16T 4613 out of which 08 gatta petis were having bottles
make blue moon premium (Punjab Excise) and remaining 152 gatta petis were
having bottles make of Crazy Romeo for sale in Arunachal Pradesh. It is also correct
that IO kept one bottle of blue moon whisky and two bottles of Crazy Romeo whisky
as sample and prepared a pullanda with the help of white cloth and affixed seal of
seal ‘SK’. It is correct that IO both all the gatta pettis in plastic katta and prepared 76
FIR No. 219/2018 State vs. Avdesh @ Love 3 of 13
parcels and tied them with the help of white cloth and affixed seal “SK”. It is correct
that IO handed over seal to me after use. It is also correct that IO handed over rukka
to Ct. Yogesh. It is correct that Ct. Yogesh reached back at the spot and handed over
original rukka alongwith copy of FIR to the IO. It is also correct that IO seized the
truck vide seizure memo already Ex. PW-2/ B bearing my signature at point B. It is
also correct that IO prepared site plan and seized the documents of truck which are
already Ex. P-1 (colly). It is also correct that IO arrested and personally searched the
accused vide memos already Ex. PW-2/E and Ex. PW-2/F, both bearing my signature
at point B. It is also correct that 10 recorded disclosure statement of accused which is
already Ex. PW-2/G bearing my signature at point B. It is also correct that after
completion of investigation on the spot, we went to PS where 10 deposited the case
property in Malkhana and accused was lodged into lockup after medical examination.
It is also correct that IO recorded my statement u/s 161 Cr PC”.
This witness was duly cross-examined by Ld. Defence Counsel.
7. PW2 is HC Pramod, No. 124/OND, PS Shahbad Dairy, Delhi,
He deposed that in the month of May, 2019, he was posted at PS
Swaroop Nagar as a Head Constable. During that period, investigation of the present
case was marked to him on the directions of the SHO, concerned. He prepared the
charge-sheet and submitted before the Hon’ble Court.
This witness was duly cross-examined by the Ld. Defence Counsel.
8. PW3 is HC Yogesh, No. 2223/OND, District Line Bawana,Outer
District, Delhi,
He deposed that on 18.06.2018, he was posted at PS Swaroop Nagar as a
Constable. On that day, he along with Ct. Chandrapal were on patrolling duty and
reached at Service Road, in front of Maruti Showroom, Nangli Puna, Delhi. One
secret informer met him and told him that a truck will come from the side of Nangli
Puna and will go towards Delhi. If checked, the same could be apprehended with
illicit liquor. Thereafter, he along with Ct. Chandrapal and the secret informer went
JYOTI Digitally signed by
JYOTI NAIN
NAIN Date: 2025.01.21
16:12:09 +0530
FIR No. 219/2018 State vs. Avdesh @ Love 4 of 13
there. They asked 4-5 public persons to join the investigation but none of them agreed
and left the spot without disclosing their names and addresses. Thereafter, they
installed barricading in front of Maruti Showroom. After some time, he noticed a
truck coming from the side of Nangli Puna and the secret informer pointed towards
that truck and left from there. They stopped the truck bearing no. UP-16-T-4613 and
on checking found illicit liquor in Gatta Pettis and apprehended the driver namely
Avdhesh. He informed the PS through duty officer and asked him to send the IO.
After some time, IO/HC Saroj Kumar came there to whom they produced the accused
and the truck . On checking, they found total 160 Gatta Pettis, out of which eight
were make of Blue Moon Premium (Punjab Excise) and remaining were of Crazy
Romeo for sale in Arunachal Pradesh only. IO kept one bottle of Blue Moon
Premium and two bottles of Crazy Romeo as sample and the remaining Gatta Petis
were put in a plastic Katta. IO prepared pullandas of all recovered illicit liquor and
gave them number 1 to 76 to all parcels and serial no. 2A, 2B and 2C to samples. IO
affixed his seal SK on all parcels and samples. IO also filled Form M-29. IO seized
all the illicit liquor vide seizure memo which is already Ex.PW1/A bearing his
signatures at Point B. IO recorded his statement Ex.PW2/A bearing his signatures at
Point A. IO prepared rukka and handed over to him for registration of FIR. He
visited PS and handed over rukka to D.O. After some time, D. O. gave him original
rukka along with copy of FIR. He came back at the spot and gave the original rukka
and copy of FIR to the IO. IO seized the truck vide seizure memo Ex.PW2/B bearing
his signatures at Point A. IO also prepared site plan at his instance which is
Ex.PW2/C bearing his signatures at Point A. IO seized documents of truck produced
by the accused vide seizure memo Ex.PW2/D bearing his signatures at Point A. The
documents are Ex.P1 (running in four pages). IO arrested and personally searched
the accused vide memos Ex.PW2/E and Ex.PW2/F respectively. IO recorded the
disclosure statement of the accused which is Ex.PW2/G bearing his signatures at
Point A. Thereafter, he along with police, accused and the case property went to PS.
IO deposited the case property in the Malkhana and lodged the accused in the lock
JYOTI Digitally signed by JYOTI
NAIN
NAIN Date: 2025.01.21
FIR No. 219/2018 State vs. Avdesh @ Love 5 of 13
16:12:13 +0530
up. His supplementary statement was recorded by the IO.
This witness was duly cross-examined by the Ld. Defence Counsel.
9. PW4 is HC Saroj Kumar, No. 919/OND, PS S.P. Badli.
He deposed that on 18.06.2018, he was posted at PS Swaroop Nagar as a
Head Constable. On that day, he was present in PS where he received DD No. 53-B
regarding recovery of illicit liquor. On which, he reached on the spot i.e. Service
Road, in front of Maruti Showroom, Nangli Puna, Delhi where Ct. Yogesh and Ct.
Chanderpal were present and they produced the accused and the truck. He asked 4-5
public persons to join the investigation but none of them agreed and left the spot
without disclosing their names and addresses.
On checking, he found total 160 Gatta Pettis in the truck, out of which
eight were make of Blue Moon Premium (Punjab Excise) and remaining were of
Crazy Romeo for sale in Arunachal Pradesh only. He kept one bottle of Blue Moon
Premium and two bottles of Crazy Romeo as sample and the remaining Gatta Petis
were put in a plastic Katta. He prepared pullandas of all recovered illicit liquor and
gave them number 1 to 76 to all parcels and serial no. 2A, 2B and 2C to samples. He
affixed his seal SK on all parcels and samples. He also filled Form M-29 which is
Ex.PW4/A, bearing his signature at point A. He handed over seal to Ct. Chanderpal
after use. He seized all the illicit liquor vide seizure memo which is already exhibited
as Ex.PW1/A bearing his signatures at Point C. He recorded statement of ct. Yogesh,
which is already exhibited as Ex.PW2/A bearing his signatures at Point B. He
prepared rukka which is Ex.PW4/B, bearing his signature at point A and handed over
to Ct. Yogesh for registration of FIR. After some time, Ct. Yogesh came back at the
spot and gave the original rukka and copy of FIR to him. He seized the truck vide
seizure memo which is already exhibited as Ex.PW2/B bearing his signatures at Point
B. He also prepared site plan which is already exhibited as Ex.PW2/C bearing his
signatures at Point A. He seized documents of truck produced by the accused vide
seizure memo which is already exhibited as Ex.PW2/D bearing his signatures at Point
Digitally signed
JYOTI by JYOTI NAIN
Date:
FIR No. 219/2018 State vs. Avdesh @ Love NAIN 2025.01.21
6 of 13
16:12:18 +0530
B. The documents are already Ex.P1 (colly) (running in four pages). He arrested and
personally searched the accused vide memos which are already exhibited as
Ex.PW2/E and Ex.PW2/F respectively, bearing his signature at point B. He recorded
the disclosure statement of the accused which is already exhibited as Ex.PW2/G
bearing his signatures at Point B. Thereafter, he along with police, accused and the
case property went to PS. He deposited the case property in the Malkhana and lodged
the accused in the lock up. He recorded statement of witnesses.
He further deposed that on 22.06.2018, he directed to HC Inderjet to
deposit case property with Excise office, ITO. On the same day, HC Inderjeet met
him and informed that he had deposit case property with Excise Office. He recorded
statement of HC Inderjeet and MHCM.
This witness was duly cross-examined by the Ld. Defence Counsel.
10. Perusal of record shows, that statement of accused was also recorded
under section 294 Cr.P.C in which the accused has admitted the document i.e.
Registration of FIR No.219/18 which is Ex.A1, certificate u/s 65-B of Indian
Evidence Act- which is Ex.A2, DD No.53-B which is Ex.A3, Excise Control
Laboratory Result which is Ex.A4, Road certificate- which is Ex.A5 and contents of
register no. 19 regarding the deposition of case property.
11. After completion of prosecution evidence, statement of accused under
Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material
brought on record were put to the accused, to which he denied the allegations made
against him and claimed himself to be innocent and pleaded that he has been falsely
implicated in this case. Accused denied to lead any evidence in his defence and the
same was closed.
12. Thereafter, matter was listed for final arguments and arguments were
adduced at length by both the parties. I have heard the arguments addressed by the
JYOTI Digitally signed
by JYOTI NAIN
NAIN Date: 2025.01.21
16:12:22 +0530
FIR No. 219/2018 State vs. Avdesh @ Love 7 of 13
Learned APP for State and Ld. Counsel for accused and have carefully perused the
record.
13. It is argued by the Ld. APP for the state, that state has proved its case
beyond reasonable doubt and that accused was found in possession of illicit liquor
without permit. It is further stated, that there are ocular and documentary evidence on
record to bring home the guilt of the accused.
14. Per contra, it is argued by the Ld. LAC for the accused, that non joinder
of public witness despite availability casts a shadow of doubt on prosecution story.
Moreover, alcohol was not recovered from the possession of accused and that he is
falsely implicated in present case and that there is no independent evidence against
him.
15. It is a cardinal principle of criminal jurisprudence, that prosecution has
to prove its case beyond reasonable doubts by leading reliable, cogent and convincing
evidence. Further, it is a settled proposition of criminal law, that in order to
successfully bring home the guilt of the accused, prosecution is suppose to stand on
its own legs and it cannot derive any benefits whatsoever from the weakness, if any,
in the defense of the accused. Accused is entitled to the benefit of every reasonable
doubt in the prosecution story and any such doubt in the prosecution case entitles the
accused to acquittal.
16. In present case, prosecution was duty bound to prove the possession of
the illicit liquor with accused. Same is sought to be proved by the recovery memo and
testimony of the witnesses. Incident happened at about 05:35 PM and it is admitted
fact, that public persons were available at the spot, which is evident from the
testimony of PW3, who stated in his examination in chief, that IO had requested 4-5
public persons to join the investigation but none of them agreed and left the spot
without disclosing their names and addresses.
JYOTI Digitally signed
by JYOTI NAIN
FIR No. 219/2018 State vs. Avdesh @ Love NAIN
8 of 13 Date: 2025.01.21
16:12:25 +0530
17. Regarding the importance of joining independent witness during
investigation in a case like the present one, reliance may be placed on “Anoop Joshi
Vs. State 1999(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“.
18. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ
55, it is observed as under:-
“that the recovery is proved by three police officials
who have differed on who snatched the Kirpan from the
petitioner and at what time. The recovery was from a
street with houses on both sides and shops nearby. And,
yet no witness from the public has been produced. Not
that in every case the police officials are to be treated as
unworthy of reliance but their failure to join witnesses
from the public especially when they are available at
JYOTI Digitally signed by
JYOTI NAINNAIN Date: 2025.01.21
16:12:30 +0530FIR No. 219/2018 State vs. Avdesh @ Love 9 of 13
their elbow, may, as in the present case, cast doubt.
They have again churned out a stereotyped version. Its
rejection needs no Napoleon on the Bridge at Arcola”.
19. Also, in State of Punjab v. Balbir Singh , AIR 1994 SC 1872, the
Hon’ble Supreme Court of India held as under :-
“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.”
[Emphasis supplied].
20. Considering the aforesaid observations made by the Higher Courts, the
omissions / failure on the part of investigating agency to join independent public
witnesses create reasonable doubt in the prosecution story. JYOTI
Digitally signed
by JYOTI NAIN
Date:
NAIN 2025.01.21
16:12:33 +0530
FIR No. 219/2018 State vs. Avdesh @ Love 10 of 13
21. In the present case, IO has not joined any public witness at the time of
arrest or while completing the formalities despite availability of public persons. There
is a possibility, that it was a chance recovery. However, at the time and place from
where the accused was apprehended and when the formalities were being completed,
public persons were admittedly present.
Even then, the IO failed to join any public witness. All the witnesses
examined are police witnesses. This casts a shadow of doubt on prosecution story.
22. Another material thing which is required to be discussed about the case
of prosecution is, that on 18.06.2018, PW1 and PW3 were on patrolling duty,
meaning thereby, that at the relevant time, they were not in the PS and it seems, that
outside the PS, then as per Punjab Rules, they being on duty was required to enter
their departure & arrival to & from the PS Swaroop Nagar in the DD register of the
said PS.
Now, as per Chapter 22 Rule 49 of Punjab Police Rules,
1934:-
“22.49 Matters to be entered in Register No. II-The
following matters shall, amongst others, be entered:-
(c)The hour of arrival and the 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 personality by signature or seal.
Note:- Lines & Police Posts, where Register no.II is
maintained.
JYOTI Digitally signed
by JYOTI NAIN
Date: 2025.01.21
NAIN 16:12:36 +0530
FIR No. 219/2018 State vs. Avdesh @ Love 11 of 13
23. But, in the present case, this provision appears to have not been
complied with in respect of departure and arrival entry of PW1 and PW3.
Prosecution has failed to produce any evidence, whatsoever on record in the nature of
documentary entries of the required DD entries, so as to establish the presence of
PW1 and PW3 at the spot. Hence, it creates doubt in the prosecution story.
24. In present case the seal was neither handed over to an independent
witness nor deposited in malkhana. No explanation has come on record as to why
handing over memo was not made or seal was not handed over to an independent
witness.
In these circumstances, the possibility of tampering of case property
cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3)
R.C.R. (Criminal) 452, the Hon’ble Punjab and Haryana High Court held that:-
“7. 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”.
25. Similarly, Hon’ble Delhi High Court in Safiullah v. State, 1993 (1) RCR
(Criminal) 622, held that –
“10. The seals after use were kept by the police
officials themselves. Therefore the possibility of
tampering with the contents of the sealed parcel
cannot be ruled out. It was very essential for the
prosecution to have established from stage to stageFIR No. 219/2018 State vs. Avdesh @ Love 12 of 13
the fact that the sample was not tampered with. Once
a doubt is created in the preservation of the sample
the benefit of the same should go to the accused.”
26. All the lapses in investigation creates doubt on the very recovery of illicit
liquor from the possession of the accused. The court is of the considered view that
prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
27 In view of the above said description and in the absence of any cogent evidence
against the accused Avdesh @ Love, he is hereby acquitted for offence under section
33/38/58 The Delhi Excise Act, 2009. Case property be confiscated to the state as per
rules and the same be destroyed.
28. File be consigned to record room.
29. This Judgment consists of 13 pages and all pages bear my signature.
JYOTI Digitally signed
by JYOTI NAIN
Date: 2025.01.21
Announced and dictated directly NAIN 16:12:41 +0530
into the computer in open court (JYOTI NAIN)
on 21st Day of January, 2025. JMFC-07/North District
Rohini Courts, Delhi.
FIR No. 219/2018 State vs. Avdesh @ Love 13 of 13
[ad_1]
Source link