Delhi District CourtState vs Kamal Kishore on 25 March, 2022IN THE COURT OF MS. MAYURI SINGH, ACMM / NORTH EAST\n               KARKARDOOMA COURTS, DELHI\n\nCR no: 464594/2015\nState Vs Kamal Kishore\nFIR No : 283/2011\nU/S : 33 ofDelhi Excise ActPS : Karawal Nagar\n\n1     FIR No. of the case                             :      283/2011\n2     Date of commission of offence                   :      06.10.2011\n3     Date of institution of the case                 :      16.12.2011\n4     Name of the complainant (if any)                :      HC Virendra\n\n5     Name of accused person,                         :      Kamal Kishore\n      his parentage and addess                               S/o Sh. Tilak Ram\n                                                             R/o H.No. B-378,\n                                                             Gali No. 5, Prem\n                                                             Vihar, Karawal\n                                                             Nagar, Delhi\n\n6     Offence complained of or proved                 :      U/s. 33Delhi\n                                                             Excise Act7     Plea of the accused                             :      Pleaded not guilty\n8     Date of Final arguments                         :      24.03.22\n9     Date of judgment                                :      25.03.2022.\n10    Final order                                     :      Acquitted\n\n\nJudgment :\n\n1.            Vide this judgment, I shall decide this case underSection\n\n33of Delhi Excise Act. Brief facts of the prosecution case are that on\n\n06.10.2011 at about 05:00PM, at Maha Laxmi Enclave Road, Shiv\n\nVihar, Karawal Nagar, Delhi, accused was found in possession of 32\n\nquarter bottles, 12 half bottles of Rasbhari Masaledar Desi Sharab\n\n\n\nSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar               page 1/12\n and 9 bottles of Metro Masaledar country made liquor, without any\n\npermit or licence. The accused was arrested underSection 33of\n\nDelhi Excise Act and charge-sheeted after investigation.\n\n\n2             Accused           appeared     before      this   Court      and    after\n\ncompliance underSection 207Cr.PC and hearing, charge undersection 33of Delhi Excise Act was framed against him vide order\n\ndated 21.03.2013 and accused pleaded not guilty and claimed trial.\n\n\n3             To discharge its onus, prosecution examined eight\n\nwitnesses. A brief scrutiny of prosecution evidence is as follows:-\n\n\n\n                 PW-1 HC Sohanbir Singh deposed that he had\n\n                 deposited the sample of the case property at the\n\n                 Excise office. He has proved the entry made in register\n\n                 No. 19A at S.No. 217 as Ex. PW1/A.\n\n                 PW-2 is Ct. Paltu Singh, who deposed that on\n\n                 06.10.2011, while he was on patrolling duty alongwith\n\n                 HC Virender, he received an information through\n\n                 secret informer that a person was selling illicit liquor on\n\n                 way       of    Mahalaxmi       Enlcave        and   he    can     be\n\n                 apprehended, if raid is done. Thereafter, PW2\n\n                 alongwith HC Virender and secret informer prepared\n\n                 raiding party and went at the spot, where they found\n\nSTATE VS. KAMAL KISHORE,    FIR NO.283/11 PS: Karawal Nagar                 page 2/12\n                  one person selling liquor, while sitting on a motorcycle\n\n                 bearing No. DL 5SJ 6789 having quarter bottles in his\n\n                 hand and on seeing the police party, accused tried to\n\n                 flee away. He was apprehended and two kattas of\n\n                 mehroon color were found hanging on the handle of\n\n                 the motorcycle. The katta was searched and it was\n\n                 having 32 quarter bottles and 12 half bottles in one\n\n                 katta and 9 bottles in other katta. One bottle, one half\n\n                 bottle and two quarter bottles were taken as sample\n\n                 and the rest were kept in the same bag. The sample\n\n                 and remaining case property were sealed with the seal\n\n                 of VS and seal after use was given to PW2. Thereafter,\n\n                 Form M29 was filled up and case property and\n\n                 motorcycle were taken into possession vide seizure\n\n                 memo Ex. PW2/A.             IO prepared rukka and handed\n\n                 over the same to PW2 for registration of the FIR. PW2\n\n                 went to PS and got the FIR registered and came back\n\n                 at the spot alongwith HC Hoshiyar Singh and handed\n\n                 over copy of FIR and original rukka to HC Hoshiyar\n\n                 Singh. HC Hoshiyar Singh prepared site-plan at the\n\n                 instance of PW2 vide Ex. PW2/B.             Accused was\n\n                 arrested and personally searched vide memo Ex.\n\n                 PW2/C and Ex. PW2/D. Thereafter they returned to\n\n\nSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar       page 3/12\n                  PS and case property was deposited with the\n\n                 malkhanna and accused was sent to lock up.\n\n                 PW-3 is ASI Virender Singh,                 who reiterated the\n\n                 testimony of PW2. Further, he deposed that he handed\n\n                 over the accused and case property to the second IO\n\n                 HC Hoshiyar.          His supplementary statement was\n\n                 recorded.\n\n                 PW-4 HC Nardev Singh is the Duty Officer who\n\n                 registered the present FIR Ex. PW4/A and made\n\n                 endorsement on the rukka Ex. PW4/B and after\n\n                 registration of the FIR, he handed over the copy of the\n\n                 FIR and original rukka to Ct. Paltu Ram to be given to\n\n                 HC Hoshiyar Singh for investigation.\n\n                 PW-5 is HC Anand, who deposed that on 12.10.2011,\n\n                 he deposited the sealed pulanda with the seal of US\n\n                 alongwith Form M-29 to Excise Lab, GNCT, IP Estate.\n\n                 PW-6 is Sh. Sanjay who deposed that he had\n\n                 purchased the motorcycle bearing No. DL5SJ6789\n\n                 from Geeta Rani, but could not get the same\n\n                 transferred in his name. He further deposed that the\n\n                 said motorcycle was found missing on the day of\n\n                 Dusshera in year 2011.Thereafter, he went to the PS\n\n                 and found his motorcycle parked there.\n\n\nSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar            page 4/12\n                  PW7 ASI Hoshiyar Singh is IO of the case and he\n\n                 investigated the present case. He deposed that on\n\n                 06.10.2011 the investigation was marked to him and\n\n                 he alongwith Ct. Paltu Ram went to the spot, where\n\n                 HC Virender met them and produced accused Kamal\n\n                 Kishore alongwith sealed pulanda of illicit liquor,\n\n                 motorcycle and documents. He arrested the accused\n\n                 vide arrest memo Ex. PW2/C and conducted personal\n\n                 search of accused vide Ex. PW2/D. Thereafter, he\n\n                 returned to PS and case property was deposited with\n\n                 malkhanna.         PW7       recorded       the   statement        of\n\n                 witnesses. It is further deposed that on 11.10.2021,\n\n                 the sample was sent to                 Excise Laboratory, ITO\n\n                 through Ct. Anand. IO obtained the result and after\n\n                 completion        of    investigation,      charge-sheet      was\n\n                 submitted to the court for trial.\n\n           Judicial notice was taken of chemical inspection report and\n\nformal proof of the same was dispensed with. Thereafter, P.E was\n\nclosed as all the material witnesses have been examined. After\n\nclosure of PE, Statement of accusedu/s 313Cr.PC was recorded.\n\nAccused has not led any defence evidence. At first, he stated that he\n\nwanted to lead evidence in defence, but vide his statement dated\n\n24.02.2022 he closed D.E.\n\n\nSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar              page 5/12\n 4.           I have heard the arguments and have perused the record.\n\n\n5.            As per the Prosecution story, accused was apprehended\n\nby the police officials during patrolling in a public place. All the PWs\n\nare police officials. Ld. Counsel for accused has submitted that\n\naccused has been falsely implicated in this case. Although it is not a\n\nlegal requirement that the testimony of police officials is not reliable,\n\nyet the testimony of police officials is to be considered with caution, in\n\nview of the facts of the present case. In the present case, accused\n\nwas apprehended at public place and public witnesses were\n\navailable as per PW-2 Ct. Paltu Singh and PW3 ASI Virender Singh\n\nbut public persons were not made witness to the recovery or arrest of\n\naccused and even no notice was served upon the public persons\n\nwho allegedly refused to participate in the proceedings. Although\n\nPW2 and PW3 deposed that public persons had left the spot without\n\ndisclosing their names and addresses, such an explanation cannot\n\nbe readily bought. A suggestion was given to PW2 that no public\n\nperson was joined in the investigation as case is false and fabricated.\n\nFacts and circumstance of the case suggests that no sincere effortshave been made by police official to join independent public\n\nwitnesses in the police proceedings.In the case reported as "Anoop Joshi vs. State, 1992 (2)\nC. C. Cases 314 (HC)", Hon'ble High Court of Delhi has deprecatedSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar      page 6/12\n the practice of the police officials of not making any sincere efforts to\njoin the public witness when they are available.Similarly, in the case\nreported as "Sadhu Singh vs. State of Punjab, 1997 (3) Crimes\n55" the Hon'ble Punjab & Haryana High Court has also not viewed\nwith favour the practice of the police of not joining any public witness\nand not making any sincere efforts in that regard when they are\nreadily available. Non joining of the public witnesses and not making\nany sincere efforts in this regard creates a doubt about the case of\nthe prosecution.6.            I have carefully perused the provisions ofSection 165Cr.P.C r/wSec. 100of Cr.P.C. Sub-Sec. 4toSection 100of Cr.P.C.\n\nmandates that while conducting search under chapter VII, two or\n\nmore independent and respectable inhabitants of the locality (in\n\nwhich the place to be search is situated or of any other locality, if no\n\nsuch inhabitants of the said locality is available or is willing to be a\n\nwitness to the search), shall be called upon to attend and witnesses\n\nthe search. Furthermore, the officers conducting search may issue an\n\norder in writing in this regard.7.            It is a settled proposition of law that Sub-section 4toSec. 100of Cr.P.C. is a directory provision however, the explanation\n\nof non-joining of independent witness should also be plausible. In\n\nnearly each and every case, a general explanation is given that no\n\npublic witness volunteered to join the search/investigation and it\n\nappears that even the "directory" provision has been made nugatory.STATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar     page 7/12\n Such a vital provision cannot be made a dead letter in the statute\n\nbook as it is intended to curb any false recovery.8.            No cogent explanation has been put forth by the\n\nprosecution for non-joining of independent witness. In the case at\n\nhand, it cannot be lost sight of that the recovery was already effected\n\nfrom a public place. In such a situation, it was incumbent on part of\n\nrecovery witnesses and IO to make efforts to join any independent\n\nwitness. Atleast, one of the residents of the locality could have been\n\njoined in the investigation to witness the alleged recovery which is\n\nalleged to have been made from a public place. There is nothing on\n\nrecord to reflect that any sincere attempt was made by recovery\n\nwitnesses and IO to join any of them in the investigation. The\n\nreluctance of public persons to join an independent witness is rather\n\nstrange. There was sufficient time with the IO to atleast note down\n\nthe names of the persons who had refused to join the investigation.\n\nNo notice whatsoever, was given to the public persons at the spot\n\neither to join the investigation. This creates a doubt on the very\n\nrecovery of illicit liquor from the accused. In my considered opinion, it\n\nwould highly unsafe to record the finding of guilt against the accused\n\non the basis of testimony of police witnesses.9.In case titled asRoop Chand Vs. State of Haryanareported as CC Cases 3 (HC), it was held as that where the policeSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar     page 8/12\n has failed to join independent witnesses in the investigation despite\n\ntheir availability and further failed to take action against those who\n\nrefused to take part in investigation nor their names were noted down\n\nby the police, the explanation of the police for not joining independent\n\nwitnesses is an afterthought and liable to be rejected\n\n\n\n       Further, in the case ofHem Raj vs. State of HaryanaAIR\n2005 SC 2110, it has been observed that:-"The fact that no independent witness though\n        available, was examined and not even an explanation\n        was sought to be given for not examining such\n        witness is a serious infirmity in the prosecution case.\n        Amongst the independent witnesses one who was\n        very much in the know of things form the beginning\n        was     not   examined    by the    prosecution.  None\n        examination of independent witness by itself may not\n        give rise to adverse inference against the prosecution.\n        However, when the evidence of the alleged eye\n        witnesses raise serious doubts on the point of their\n        presence at the time of actual occurrence, the\n        unexplained omission to examine the independent\n        witness would assume significance".In the case ofMassa Singh Vs. State of Punjab2000(2)C.C.Cases HC 11, conviction was set aside on the ground\n\nthat it was obligatory on the part of investigating officer to take\n\nassistance of independent witnesses to lend authenticity to the\n\ninvestigation conducted by him. It was observed as under:-"The recovery has been effected from a public place. The\n         investigating Officer could have taken the trouble to\n         associate an independent witness to get the attestation ofSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar    page 9/12\n          such independent witness regarding the authenticity of the\n         investigating conducted by him. This aspect of the case\n         has not been properly appreciated by the Court below".In the cases of Gurbel Singh Vs. State of Punjab 1991 Crl.\n\nRev. No.504(P&H)and Dhanpat Vs. State of Punjab 2000 (1) CC\n\nCases HC 52 it has been held that non joining of independent\n\nwitnesses is fatal to the prosecution case & accused is entitled to\n\nbenefit of doubt.10.           Also, no efforts whatsoever have been made by the\n\nprosecution to have clue about the source from where illicit liquor\n\nwas arranged for by the accused. Atleast, some efforts must have\n\nbeen made by the police to interrogate the accused and conduct the\n\nrequisite investigation to know as to from where the accused\n\narranged the illicit liquor.       It could be a result of either a hasty\n\ninvestigation or a shoddy investigation but in either case, the benefit\n\nshould go to the accused. PW2 and PW3 are stated to have been on\n\npatrolling duty but no DD entry regarding their departure to the spot\n\nhas been proved on record. No such DD entry for the relevant time is\n\nfiled and proved on record. PW2 deposed in his cross-examination\n\nthat he did not remember the DD Entry through which he and PW3\n\nwere on patrolling duty and failure to disclose DD Entry number\n\nthrows a valid doubt over the prosecution case.11.           Further from the record, it appears that after theSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar      page 10/12\n apprehension of the accused but before taking the formal / casual\n\nsearch of the accused, police official(s) had not offered their own\n\nsearch to the accused before taking his search.At this juncture, it\n\nwould be appropriate to refer to the judgment of Hon'ble Orissa High\n\nCourt reported asRabindernath Prusty vs. State of Orissa.In this\n\ncase relying upon the judgment of the Supreme Court inState of\n\nBihar Vs. Kapil SinghAIR 1969 SC 53 : (1969 Cri. L.J 279) it has\n\nbeen held that one of the formalities that has to be observed in\n\nsearching a person is that the searching Officer and others assisting\n\nhim should give their personal search to the accused before\n\nsearching the person of the accused.12.           Another aspect of the case is that as per the prosecution\n\nwitnesses , the seizure memo of case property was prepared prior to\n\nthe registration of the FIR. However, the said document mentions the\n\nFIR number in the same flow and ink. It thus appears that there was\n\nno occasion for the FIR number to be mentioned on the seizure\n\nmemo inasmuch as the IO did not know the FIR number at time of\n\nthe preparation of the said document even as per the prosecution\n\nversion.In the matter ofGiri Raj vs State2000 (83) DLT 201, the\n\nHon'ble High Court of Delhi held that where the FIR number was\n\nmentioned on the documents prepared prior to registration of the FIR\n\nthen it gives rise to two inferences either that the FIR was recordedSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar   page 11/12\n prior to recovery of the articles or that number of the FIR was\n\ninserted in the documents later on. In both the cases, it seriously\n\nreflects on the veracity of the prosecution version and creates a\n\ndoubt about the alleged recovery. In the present case also the\n\nmentioning of the FIR number on the seizure memo affects the\n\nveracity of the version of the prosecution regarding the manner in\n\nwhich the recovery was effected, the benefit whereof has to go to the\n\naccused.13.          In the light of the discussion above said, false implication\n\nof the accused cannot be ruled out. In fact, prosecution has failed to\n\nprove the allegations against the accused beyond reasonable doubt.\n\nI hereby give benefit of doubt to the accused. Accordingly, accused\n\nnamely Kamal Kishore is acquitted of the offenceu/s 33Delhi Excise\n\nAct.Copy of judgment be uploaded on the official website.Digitally signedMAYURI   by MAYURISINGHSINGH    Date: 2022.03.25\n                                                                16:49:10 +0530\n\n\nANNOUNCED IN OPEN COURT                           (MAYURI SINGH)\nOn 25.03.2022                                   ACMM (NORTH EAST)\n                                              KARKARDOOMA COURTS,\n                                                       DELHI\n\n\n\n\nSTATE VS. KAMAL KISHORE,   FIR NO.283/11 PS: Karawal Nagar             page 12/12