Delhi District Court
State vs Sukhbir on 25 January, 2025
CR Cases 1616/2023
IN THE COURT OF MR. SANKALP KAPOOR, JMFC-04,
SOUTH DISTRICT, SAKET COURTS, DELHI.
FIR No. : 167/2022
U/s : 33 The Delhi Excise Act, 2009
P.S. : Maidan Garhi
State Vs. Sukhbir
a) CNR No. of the Case :DLST02-006066-2023.
b) Name & address of the : ASI Satbir, Belt No.525/SD, PS
complainant Maidan Garhi, South District, Delhi.
c) Name & address of : Sukhbir s/o Sh. Pardesi,
Accused R/o H. No. 270, Sanjay Colony, Bhati
Mines, New Delhi.
d) Date of Commission of : 18.03.2022
offence
e) Offence complained of : 33 The Delhi Excise Act, 2009
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
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Date of Institution : 22.03.2023
Final arguments heard on : 08.11.2024
Judgment Pronounced on : 25.01.2025
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment the accused namely Sukhbir s/o Sh. Pardesi is being
acquitted of the offence punishable under Section 33 Delhi Excise Act, 2009
in this case FIR No.167/2022 Police Station Maidan Garhi by giving benefit
of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution as unfolded by the police report
under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘Cr.P.C‘) is that on 18.03.2022 at about 03:30 PM in front of
Gali No.6, L Block, Bandh Road, Sangam Vihar, New Delhi within the
jurisdiction of police station Maidan Garhi, the accused was apprehended by
ASI Satbir during patrolling duty. As per the prosecution story the accused
was apprehended in possession of 65 quarter bottles of make Satrangi
Santra Masaledar Desi Sharab and 07 bottles of Kingfisher Deluxe Strong
Beer for sale in Haryana only 180 ml each without any permit or licence of
National Capital Territory of Delhi.
COURT PROCEEDINGS
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3. Upon completion of investigation, police report under Section 173 of the
Cr.P.C. was filed and the accused was consequently summoned vide order
dated 22.03.2023.
4. The copies of the police report and annexed documents were supplied to the
accused in due compliance of Section 207 Cr.P.C.
CHARGE
5. Vide order dated 18.03.2022 passed by this Court, charge for the offence
punishable under Section 33 of the Delhi Excise Act was framed against the
accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 27.06.2024, in compliance of the provisions of Section
294 Cr.P.C., the accused was called upon to admit/deny the following
documents i.e., FIR No. 167/2022 Police Station Maidan Garhi, certificate
under Section 65B of Indian Evidence Act, GD No.35A, 54A and 103A
dated 18.03.2022, 19.03.2022 and 18.03.2022 respectively, Excise lab report
dated 01.06.2022 and RC No.50/21/22 dated 29.03.2022 and the same were
accordingly exhibited as Ex. AD-1 to Ex. AD-7 respectively. In view of the
admission made, the evidence of DO/ HC Mahipal, Sh. Rajesh Joshi, Dy.
Chemical Examiner and Ct. Harbir, were dispensed with, being admitted by
the accused.
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EVIDENCE OF THE PROSECUTION
7. To prove its case, the prosecution in all examined two witnesses.
a. PW-1 ASI Satbir Singh deposed that on 18.03.2022 he was posted at PS
Maidan Garhi as ASI and on that day he along-with Ct. Jitender was on
beat patrolling duty. He further deposed that he was patrolling when they
reached at Sanjay Gandhi Park, Main Road, Sanjay Colony, Bhati Mines
then they saw a man who was carrying one plastic katts on his shoulder
who upon seeing him drop the katta and tried to flee away. He further
deposed that on suspicion, he stopped the said person and upon checking
the said katta, he found illicit liquor. He further deposed that he asked
public persons to join the investigation but they refused to join the
investigation. He further deposed that no notice was served due to
paucity of time. He further deposed that thereafter, he checked the katta
which was found containing 65 bottles of illicit liquor having label of
Satrangi Santara Masaledar Desi Sharab and 07 bottles of illicit liquor
having label of Kingfisher Deluxe Strong Beer for sale in Haryana only.
He further deposed regarding the seizure of sample case property and the
remaining case property. He further deposed that he prepared rukka and
handed over the same to Ct. Jitender and Ct. Jitender went to PS and got
the FIR registered and came back to the spot and handed over the copy of
FIR and original rukka to him. He further deposed that he also prepared
the site plan Ex.PW1/D. He further deposed that till that time, HC Jai
Prakash came to the spot as further investigation was marked to him and
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he handed over to him the copy of FIR and original rukka along-with
case property and the custody of accused was also given to him. He
further deposed that he thereafter left the spot. PW-1 correctly identified
the accused and the case property in the Court.
In his cross-examination by Ld. defence counsel PW-1 deposed that his duty
hours were 08:00 am to 08:00 pm. He further deposed that he made departure
entry when he left police chowki Sanjay Colony, Bhati Mines for patrolling i.e.
DD No.35 A. He deposed that the place of incident is residential area and that the
I had requested public persons to join the investigation. He further deposed that
no CCTV footage was found at the place of incident. He further the distance
between the place of incident and PS is about 05-06 km. He further deposed that
Ct. Jitender went to PS for registration of FIR at about 05:20 pm, and came back
to the spot along-with copy of FIR at about 07:00 pm. He lastly denied the
suggestion that the accused was falsely implicated in the instant case or that all
the documentation was done at the PS only.
b. PW-2 ASI Jai Prakash in his examination deposed that on 18.03.2022, he
was posted at PS Maidan Garhi as HC and on that day, he received
information from duty officer and reached at the spot i.e. Sanjay Gandhi
Park, Main Road, Sanjay Colony, Bhati Mines where he met Ct. Jitender
and ASI Satbir and the accused along-with case property. He further
deposed that ASI Satbir handed over him the accused. He further deposed
that he interrogated the accused and arrested the accused vide arrest
memo Ex.PW2/A and his personal search was also got conducted vide
personal search memo Ex.PW2/B. He further deposed that the he also
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recorded the disclosure statement of the accused. He further deposed that
thereafter they all left the spot and came back to the PS along-with case
property and the accused and the case property was deposited in the
malkhana. He further deposed that he also sent the samples to excise lab
and collected the result of the same. He further deposed that after
conclusion of investigation, he prepared the charge sheet and filed the
same before the Court. PW-2 correctly identified the case property from
the samples and photographs brought by the MHC(M).
In his cross-examination by Ld. defence counsel PW-2 deposed that on the
date of the recovery his duty hours were from 08:00 am to 08:00 pm and deposed
that he did not remember whether he had made any entry or not when he left the
PS. He further deposed that information regarding the arrest of accused was given
to his brother Ajay. He further deposed that he did not make any photography or
videography. He further deposed that no CCTV camera was found installed at the
spot. He further deposed that the distance between the PS and the place of
incident is about 08 km. He lastly denied the suggestion that he was deposing
falsely or that the accused was falsely implicated or that no recovery was effected
from he accused.
c. Thereupon, on 27.06.2024 the PE was closed on oral statement of the Ld.
APP for the State and matter was fixed for statement of accused.
STATEMENT / DEFENCE OF THE ACCUSED
8. In his examination recorded under Section 313 Cr.P.C, the defence of the
accused was that of denial. He categorically stated that he is innocent and
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has been falsely implicated in the present case. He further stated that he was
not present at the spot and no recovery has been effected from him. The
accused did not lead any evidence in his defence.
ARGUMENTS
9. Learned Assistant Public Prosecutor for the State addressed pertinent
arguments. She submitted that the accused as well as the case property have
been correctly identified by the witnesses. She stated that link evidence is
also available. She urged that the case has been proved beyond doubt against
the accused and prayed for conviction of the accused.
10.On the other hand, Sh. Anand Kumar Pandey, learned counsel for the
accused submitted that the accused has been falsely implicated by the police
and nothing was recovered from his possession. He submitted that the
absence of public witnesses to the alleged recovery is fatal to the case of the
prosecution and that the IO did not prepare any seal handover memo and
thus prayed for acquittal of the accused.
ANALYSIS AND FINDINGS
11.The record has been thoroughly and carefully perused. The respective
submissions of the learned Assistant Public Prosecutor for the State and
learned counsel for the accused have been considered.
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Charge under Section 33 Delhi Excise Act
12.With respect to the charge under Section 33 of the Delhi Excise Act, the case
of the prosecution is that on the fateful day the accused was found in
possession of illicit liquor without any permit or licence. In order to bring
home the charge against the accused, the prosecution was required to prove
beyond reasonable doubt the recovery of illicit liquor from the possession of
the accused.
Re: Absence of independent witnesses
13.Evidently, no public witness to the recovery of the liquor has been either
cited in the list of witnesses or examined by the prosecution. The recovery is
alleged to have been effected from a residential area. The spot of recovery as
per the site plan Ex. PW-1/D was located on a main road and has several
houses in the neighbour-hood. Further, as per the site plan, the spot of
recovery was residential area, which, according to the site plan, is
surrounded on two sides by residential houses. The place of recovery and
apprehension of the accused is, therefore, clearly located in an area where
public persons would be readily available. The apprehension and recovery
were allegedly made at about 03:30 pm. Thus, at the place and time of the
alleged recovery of illicit liquor and apprehension of the accused, public
persons would in all likelihood have been present and available or have at
least passed by the spot. It is not the case of the prosecution that no public
person was present at or near the spot of arrest and recovery.
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14.It is further pertinent to note that PW-1 and PW-2 in their cross-examination
stated that there were public persons nearby the place of incident and they
had asked them to join the investigation but all of them refused. PWs
admittedly had not given any notice to the said persons upon their refusal to
join the investigation. PW-1 and PW-2 in their cross-examination stated that
they did ask certain public persons to join the proceedings however public
persons refused citing reasons. Further, PW-1 and PW-2 stated that no public
witness came join the investigation. However, neither of them stated the
description of the persons who had allegedly refused to join the
investigation. Further, there is nothing on record to show that PW-1 and PW-
2 had served any notice under Section 160 Cr.P.C. upon the persons who
refused to join the investigation. Thus, the prosecution has failed to prove
that any serious effort was made by PW-1 or PW-2 to join public witnesses
in the proceedings. From a perusal of the record, no serious effort for joining
public witnesses appears to have been made. It is a well settled proposition
that non-joining of public witness shrouds doubt over the fairness of the
investigation by police. Section 100(4) of Cr.P.C also casts a statutory duty
on an official conducting search to join two respectable persons of the
society. Same has not been done in the present case. This casts a doubt on
the fairness of the investigation. Reliance is placed on paragraph 6 of the
judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J.
127, wherein the Hon’ble High Court of Delhi had observed as under:
” … According to Jagbir Singh, he did not join any public
witness in the case while according to Kalam Singh, no
public person was present there. It hardly stands to reasonFIR No.167/2022 State Vs. Sukhbir Page No.9 of 16
CR Cases 1616/2023that at a place like a bus stop near Subhas Bazar, there
would be no person present at a crucial time like 07.30 p.m.
when there is a lot of rush of commuters for boarding the
buses to their respective destinations. 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 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 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.”
15.This Court is, however, conscious that the prosecution case cannot be
thrown out or doubted on the sole ground of non-joining of public witnesses
as public witnesses keep themselves away from the Court unless it is
inevitable, as has been held in Appabhai and another v. State of Gujarat,
AIR 1988 SC 696. However, in the present case, it is not only the absence of
public witnesses which raises a doubt on the prosecution but there are other
circumstances too, as discussed hereinafter, which raise suspicion over the
prosecution version.
Re: Departure entry not proved
16.The present case rests entirely on the alleged recovery of case property, i.e.
illicit liquor, from the possession of the accused at the relevant time by a
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single police official, who was 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:
“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.”
17. Since public persons were not joined in the investigation, the departure
entry of the aforesaid police official i.e., ASI Satbir Singh, who was
allegedly on patrolling duty at the relevant time and had apprehended the
accused with case property, becomes a vital piece of evidence. No such daily
diary entry regarding departure of PW-1 is, however, present on record.
Despite of cross-examination of the witnesses qua the said departure entries
by the witnesses the prosecution was not able to bring on record any proof of
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the said entries, and the same is indispensable as the present case rests solely
on the alleged recovery made by the aforesaid police official.
Re: Possibility of misuse of seal of the investigating officer
18.As per the testimonies of the prosecution witnesses, the sample of liquor and
case property were sealed by the investigating officer with the seal of ‘SS’.
However, the PWs have not deposed qua the handing over of the said seals
to any other witness or police official and no handing over memo regarding
the same was prepared. The seal in the present case was not handed over to
any independent witness nor was it deposited in the malkhana to assail the
possibility of its misuse. Thus, the possibility that the case property may
have been tampered with cannot be ruled out.
Re: Other infirmities in the prosecution case
19. It further needs to be appreciated that after preparing the rukka ASI Satbir
sent Ct. Jitender for registration of FIR to the PS, however, admittedly
seizure memos Ex. PW-1/A has been prepared by ASI Satbir prior to that as
per the testimony of PW-1. It is therefore; clear that the seizure memos of
the liquor must have been prepared at the spot before the rukka was sent to
the police station for registration of the FIR. A perusal of the seizure memo
reveals that it contains the FIR details, thus raising a valid doubt in the mind
of this court as to how it was made before the FIR was lodged and still
contained the FIR details. Accordingly, it follows that the number of the FIR
would have come to the knowledge of the investigating officer only after a
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copy of the FIR was brought to the spot by Ct. Jitender. Thus, ordinarily, the
FIR number should not find mention in the seizure memo, which came into
existence before registration of the FIR. However, interestingly, the seizure
memos Ex. PW-1/A bear the FIR number and case details in the same ink
and the same handwriting in which the said documents are prepared. The
same indicates that FIR number was mentioned on the said documents while
preparing the same. Reliance here is placed on the decision of the Hon’ble
High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989
Cri. L.J. 127, wherein it was observed paragraph 5 as under:
“… 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, PW11/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 to 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.”
20.In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the
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Hon’ble High Court of Delhi observed:
“… Surprisingly, the secret information (Ex. PW7/A) received
by the Sub-Inspector Narender Kumar Tyagi (PW-7), the
notice under Section 50 of the Act (Ex. PW5/A) alleged to
have been served on the appellant, the seizure memo (Ex.
PW1/A) and the report submitted under Section 57 of the Act
(Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The
number of the FIR (Ex. PW4/B) given on the top of the
aforesaid documents is in the same ink and in the same
handwriting, which clearly indicates that these documents
were prepared at the same time. The prosecution has not
offered any explanation as to under what circumstance
number of the FIR (Ex. PW4/B) had appeared on the top of
the aforesaid documents, which were allegedly prepared on
the spot. This gives rise to two inferences that either the FIR
(Ex. PW4/B) was recorded prior to the alleged recovery of
the contraband or number of the said FIR was inserted in
these documents after its registration. In both the situations,
it seriously reflects upon the veracity of the prosecution
version and creates a good deal of doubt about recovery of
the contraband in the manner alleged by the prosecution.”
21.In the instant case as well, no explanation has been furnished on record as to
how the FIR number and case details have appeared on the seizure memos
Ex. PW-1/A. The same leads one to only one inference that either the said
documents were prepared later or that the FIR had been registered earlier in
point of time or that the IO never joined the investigation at the spot and
every part of the investigation was done by him while sitting at the PS as
alleged by the defence. In both the aforesaid cases a dent is created and
unexplained holes are left in the prosecution story, the benefit of which must
accrue to the accused.
22. Furthermore, the testimony of PW-1 and PW-2 also reveals that there are
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several inconsistencies regarding the preparation of seal handover memo or
return memo.
23. Another important aspect that needs to be appreciated is that the IO
admitted that there was no addition to the seizure memo after the same was
prepared. Furthermore, no photography or videography of the accused with
the case property has been made. Thus, raising sufficient questions regarding
the nature and manner in which the investigation was carried out by the IO.
CONCLUSION
24.The facts that no independent witness was cited or examined, daily diary
entry regarding departure of PW-1 has not been proved, possibility of misuse
of seal has not been ruled out and the appearance of FIR number and case
particulars on the seizure memos has not been explained, when kept in
juxtaposition to each other, cast a cloud of suspicion over the prosecution
version. In view of the aforesaid, the possibility of false implication of the
accused in the present case cannot be ruled out.
25.It is trite in criminal jurisprudence that the prosecution is under an obligation
to prove its case against the accused beyond reasonable doubt. The standard
of proof to be adopted in criminal cases is not merely of preponderance of
probabilities but proof beyond reasonable doubt on the basis of cogent,
convincing and reliable evidence. It is also well settled that in case of doubt,
the benefit must necessarily be allowed to the accused.
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26.Thus, in view of the foregoing analysis, this Court is of the considered
opinion that the benefit of doubt ought to be granted to the accused, who is
entitled to be exonerated of the charges against him in the present case. The
accused is hereby acquitted of the offence punishable under Section 33 of
the Delhi Excise Act. Case property be confiscated to State as per rules.
27.File be consigned to record room. Digitally signed
by SANKALP
SANKALP KAPOOR
KAPOOR Date:
Announced in the open Court 2025.01.25
17:14:04 +0530
today i.e. on 25th January, 2025 (Sankalp Kapoor)
JMFC-04, South District
Saket Court/New Delhi
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