IN THE COURT OF SANDEEP GARG ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH), NEW DELHI. (b) The date of commission of offence :

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1 IN THE COURT OF SANDEEP GARG ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH), NEW DELHI F.I.R. No: 251/11 U/s 33 of Delhi Excise Act. P.S. Saket State Vs. Ashok Kumar & Ors Date of Institution of Case : Judgment Reserved on : Date of Judgment : JUDGMENT: (a) The serial no. of the case : 33/3/13 (02406R ) (b) The date of commission of offence : (c) The name of complainant : SI Jitender Kashyap, : PIS No , PS Saket, : New Delhi (d) The name, parentage, of accused : 1. Ashok Kumar, : S/o Late Sh. Om Prakash, : R/o H. No. 778, Gali No. 13, : L 1 st, Near Budh Bazar, :Samgam Vihar, New Delhi. : 2. Ali : S/o Sh. Jafar Ali :R/o H.No. 216, Gali No. 2, : Shani Bazar, Sangam Vihar, : New Delhi Permanent Address: :Vill Khair Mohalla Bada, : PS Khair, Dist Aligarh, FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 1 of 39

2 : Uttar Pradesh : 3. Farman : S/o Sh. Ram Jani : R/o H.No. K 2 nd, 612, : Near Sai Baba Mandir, : Gali No. 2, Sangam Vihar, : New Delhi Permanent Address: : Vill Raja Kheda, Ward No. 15, : PS Raja Kheda, Dist Dholpur, : Rajsthan (e) The offence complained of : U/s 33 of Delhi Excise Act. (f) The plea of accused : Pleaded not guilty (g) The final order : Accused Ashok Kumar and Ali : are convicted and accused : Farman is acquitted (h) The date of such order : Brief statement of the reasons for the decision: 1. The present case arose out of information received at PS Saket which was recorded vide DD No. 79B dated whereby it was informed that an accident had taken place near PTS Malviya Nagar and injured are present at the spot. Thereupon, SI Jitender Kashyap and Ct. Prem Singh went to the spot i.e. T point situated at traffic light of PTS, Gitanjali Enclave, Press Enclave road where they found that a white colour Maruti 800 car bearing registration no. DL 9C 2266 was standing in an accidental condition in the middle of the traffic light crossing. The windshield of the said car was found to be broken and quarter bottles of liquor were lying inside the car. Carton boxes containing FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 2 of 39

3 the liquor quarter bottles were found to be torn. Blood stains were found inside the car. A DTC bus bearing registration no. DL 1PC 7026 was found standing on Aurobindo College Road. 2. SI Jitender Kashyap and Ct. Prem Singh met Sh. Dhanpat Singh, driver of the aforementioned DTC bus whose statement was recorded. It was revealed that the accident had taken place due to rash and negligent driving by driver of the aforementioned Maruti 800 car which had hit the left rear side wheel of the aforementioned DTC bus. The driver of the said Maruti car and another person sitting in that car had sustained injuries who were taken out of the car by the driver of the DTC bus. Both the injured persons were taken to hospital by a motorcyclist. Liquor quarter bottles were found scattered in and outside the car. 3. First IO SI Jitender Kashyap took out all the liquor quarter bottles. It was discovered that the liquor quarter bottles were of three different brands. 900 plastic liquor quarter bottles of make Falcon's Orange Masaledar Desi Sharab, for sale in Haryana only; 498 glass liquor quarter bottles of make Besto Whisky for sale in Haryana only and 185 glass quarter bottles of make Bonnie Special Whisky for sale in Haryana only were found. The recovered 900 plastic liquor quarter bottles were kept in three plastic bags wherein 300 plastic liquor quarter bottles were kept which were assigned Sl. No. 1 to glass liquor quarter bottles of make Besto Whisky were kept in 10 plastic bags which were assigned Sl. No. 4 to 13. In bags bearing Sl. No. 4 to 12, 50 quarter bottles were kept and FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 3 of 39

4 in bag bearing Sl. No. 13, 48 quarter bottles were kept. 185 glass liquor quarter bottles of make Bonnie Special Whisky were kept in four white bags bearing Sl. No. 14 to quarter bottles each were kept in bags bearing Sl. No. 14 to 16 and 35 quarter bottles were kept in bag bearing Sl. No One quarter bottle each was taken out from each bag as sample and the samples were assigned Sl. No. 1A to 17A whose caps were covered with a cloth and sealed with the seal of JK. All the bags were also tied and sealed with the seal of JK. Form No. M 29 was filled up at the spot and seal of JK was affixed upon it. Rukka was prepared by SI Jitender Kashyap and FIR was got registered through Ct. Prem Chand. Thereafter, further investigation was assigned to second IO HC Balwant who reached at the spot. Second IO HC Balwant prepared site plan. During investigation, registered owner of the aforementioned Maruti car viz. Md. Hanif was contacted was who stated that he had sold the said vehicle to Ashraf Ali Khan on for a consideration of Rs. 30,000/ and had handed over blank signed documents to the purchaser. Ashraf Ali Khan stated that he had further sold the Maruti car to Jaan Mohammad. Jaan Mohammad revealed that he had sold the Maruti car to Yasin Khan. Yasin Khan revealed that he had sold the car to accused Ashok Kumar for a sum of Rs. 14,000/. Accused Ashok Kumar was arrested and was remanded to police custody for two days. At his instance, accused Ali and Farman were arrested. All the three accused persons refused to participate in TIP proceedings. Result of Excise Lab was obtained and chargesheet was filed. As per the chargesheet, FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 4 of 39

5 the accused persons were transporting the aforementioned liquor quarter bottles without having any permit and license and thus, committed offence punishable U/s 33 of Delhi Excise Act, In compliance of Section 207 Cr.P.C, copy of charge sheet and its annexures were supplied to all three accused persons. Thereafter, vide order dated , charge U/s 33 of Delhi Excise Act was framed upon all three accused persons to which they pleaded not guilty and claimed trial. 6. In order to substantiate its case, prosecution has examined nine witnesses. Thereafter, statements of all three accused persons U/s 313 Cr.P.C. were recorded wherein they claimed themselves to be innocent and having been falsely implicated in the case. They preferred not to adduce any evidence in support of their defence. Brief scrutiny of the evidence recorded in the matter is as under. 7. PW 01 Sh. Dhanpat Singh has deposed that , he was working as driver of DTC bus and was on duty on route no. 512 in bus bearing registration no. DL 1PC On that day, he was driving the aforementioned bus and his bus was going towards Malviya Nagar from Ambedkar Nagar depot. At about 6:25 AM, when he was taking a right turn from PTS T point to Aurobindo College road, one white colour Maruti Car bearing registration no. DL 9C 2266 FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 5 of 39

6 came in rash and negligent manner and hit against the bus from the left rear side after jumping red traffic light. He stopped his bus, got down and went towards the said Maruti car. The said car had got damaged from front side and its windshield was broken. He saw inside the car and found bottles of illicit liquor. The occupants of the car asked him to park the bus on one side. After moving the bus on one side, he went towards the car, but the occupants were not present at the spot and he came to know through public persons that they have left the spot on a motorcycle for medical treatment. He called on 100 number and police reached at the spot. IO seized the liquor bottles vide seizure memo which is Ex. PW 1/A. He correctly identified the accused who was driving the car on that day, but he does not remember his name. IO recorded his statement. He identified the case property in court which is Ex. P 1 (Colly). 8. PW 01 Sh. Dhanpat Singh was cross examined by Ld. APP for the State on the point of identify of accused Farhan. During his cross examination, upon being pointing out towards accused Farhan, he stated that he cannot identify accused Farhan as he had not seen his face. He denied that he was won over by accused Farhan due to which he was deliberately not identifying him. During his cross examination by ld. defence counsel, PW 01 admitted that vehicles were coming and going on the road. He cannot tell as to how long, he remained at the spot. He does not remember as to who had brought the plastic bags for keeping the case property. He admitted that no seal was affixed on plastic bags in his presence. Police officials had not asked public FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 6 of 39

7 persons to join investigation in his presence. He does not know as to who had carried the plastic bags to the PS. He does not know the name of police officials who had conducted the investigation. He denied that accused had not driven the car in a rash or negligent manner or that no liquor was being carried by the accused persons in the car. 9. PW 02 Sh. Jaan Mohammad deposed that in the year 2009, he had purchased one Maruti car bearing no. DL 9C 2266 from Ashraf Ali for an amount of Rs. 32,000/ and in the last month of 2010, he had sold the said car to Yasin Khan for an amount of Rs. 13,000/, but he had not got the car transferred in his name. During his cross examination, PW 02 stated that he does not know the exact date when he had purchased the said car. He had not got his name mutated in the RC. He denied that he had not purchased the said car or that he was deposing falsely. 10. PW 03 Sh. Ashraf Ali deposed that in the year 2007, he had purchased one Maruti car bearing no. DL 9C 2266 from Mohd. Hanif for an amount of Rs. 30,000/. He had not got the car transferred in his name. He had taken Forms No. 29 & 30 from Mohd. Hanif and in the year 2009, he had sold the said car to Jaan Mohammad. During his cross examination, PW 03 stated that he does not know the exact date when he had purchased the said car. He had not got his name FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 7 of 39

8 mutated in the RC. He denied that he had not purchased the above said car or that was deposing falsely. 11. PW 04 Ct. Prem Chand deposed that on , he was on emergency duty from 8:00 PM to 8:00 AM. At about 6:25 AM, on , he alongwith SI Jitender Kashyap, after receipt of accident call, reached at the accident spot i.e. Traffic Light, T point, PTS Geetanjali, Press Enclave Road where they found one Maruti car bearing no. DL 9C 2266 in an accidental condition. The front side of the said car was damaged. Inside the said car, there were quarter liquor bottles. They found one DTC bus bearing no. DL 1PC 7026 at Aurobindo College Marg. They also found one blue bag at the dash board of the said car and one original RC of the said car, other documents in the said bag. IO got the said car checked and found 900 quarter bottles of Falcon Orange brand liquor of size 180 ml, for sale in Haryana. 498 quarter bottles were of make NV Besto Special Whiskey and 185 quarter bottles were of make Bonny Special Whiskey. Some liquor quarter bottles were found broken. 12. PW 04 Ct. Prem Chand further deposed that IO collected samples and liquor was seized by sealing it with the seal of JK, vide seizure memo which is already Ex. PW 1/A. IO prepared a rukka which was handed over to him for registration of FIR. After registration of FIR, he came back to the spot at about 10:30 AM. IO seized both the vehicles from the spot. IO collected blood from the bonnet of the car and kept it in a bottle. He seized the same by sealing it with the seal of JK. IO prepared separate rukka for offence punishable under the Delhi FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 8 of 39

9 Excise Act. He got the FIR registered and came back to the spot alongwith HC Balwant Singh. 13. During his cross examination, PW 04 stated that they went to the spot on a motorcycle, but he does not remember its registration number. They reached at the spot at about 6:45 AM where offending vehicle and DTC bus were found. Some vehicles were passing through road. He does not remember as to whether IO had requested some public person to join investigation or not. IO obtained the plastic bags, but he does not know from where he got the same. He does not remember whose statement was recorded in his presence. 14. PW 04 further stated that his statement was recorded by IO at the spot, but he does not remember the time. He finally left the spot at about 1:15 PM. The seized liquor was taken to PS Saket in govt. vehicle, but he does not remember the number of that vehicle. The seized liquor was deposited in malkhana of PS Saket at about 1:30 PM. IO had prepared handing over memo of seal which might be available in file of other case bearing FIR No. 250/11, PS Saket. He had returned back the seal to IO after depositing case property in malkhana, but he does not remember the time when he handed over the seal to IO. The site plan was prepared by the IO in his presence, but he does not remember the time when it was prepared. Upon being shown the site plan, he stated that it is the same from top to bottom and there are no changes in it. FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 9 of 39

10 15. PW 04 further stated that both the vehicles were taken to PS with the help of a crane, but he does not remember the registration number of the said crane. He does not remember the chronology in which documents were prepared. He denied that he had not reached at the spot and no proceedings were conducted by the IO in his presence. He denied that IO had prepared all the documents by sitting at PS. 16. PW 05 Mohd. Hanif deposed that he was the registered owner of Maruti car bearing no. DL 9C 2266 and he had sold the said vehicle to Sh. Ashraf Ali Khan on Police had inquired from him about the said incident. Opportunity to cross examine the witness was given to ld. defence counsel, but he preferred not to cross examine him. 17. PW 06 Sh. Yasin Khan deposed that he was residing at H.No. L 1362, Street No. 27, Sangam Vihar, New Delhi and was doing welding job. He had bought one Maruti 800 car bearing no. DL 9C 2266 from one Sh. Jaan Mohammad who was residing in his locality for a total consideration of Rs. 13,000/ in the month of March, The name of Jaan Mohammad was not mutated in the RC as he had not got the car transferred in his name. He himself also did not get the car transferred in his name. Jaan Mohammad had given the original RC to him which was in the name of Hanif Mohammad. Jaan Mohammad also gave one blank Form 29 duly signed by Hanif Mohammad. After keeping the said car for about 3 4 months, in the end of June, 2011 or in early July, 2011, he FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 10 of 39

11 sold the said car to one Ashok whose brother resides in his locality. 18. PW 06 Sh. Yasin Khan further deposed that he sold the said car to Ashok for a consideration of Rs.14000/ and at the time of handing over the car, he handed over the blank Forms 29 and 30 signed by Hanif and which he had received from Jaan Mohammad. He correctly identified accused Ashok in the court to be purchaser of the car. He also identified the photocopy of RC of Maruti 800 car bearing no. DL 9C 2266, photocopy of blank Form No. 29 (two copies) and Form No. 30 (two copies) duly signed by Hanif. The RC is Ex. P 01 (OS & R from judicial file of case FIR No. 250/11, PS Saket) and the two Form 29 and two Form 30 are collectively Ex. P 02 (OS & R from judicial file of case FIR No. 250/11, PS Saket). 19. During his cross examination, PW 06 stated that he does not remember the date on which he had purchased the car. He denied that neither he had purchased the car from Jaan Mohammad not sold it to accused Ashok. He denied that he was a planted witness just to fill the lacuna of the case for falsely implicating the accused. 20. PW 07 HC Bhupender deposed that on , he was posted at PS Saket as Constable and joined the investigation of the present case with HC Balwant. During investigation, he alongwith HC Balwant and SI Jitender Kashyap were present near Budh Bazar, L 1, Sangam Vihar where one secret FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 11 of 39

12 informer met them and showed them the house of accused Ashok Kumar. After sometime, one person came out from the said house and the secret informer pointed towards him to be Ashok for whom they were searching. He and HC Balwant apprehended accused Ashok and his disclosure statement was recorded which is Ex. PW 7/A. Accused Ashok was arrested and his personal search was conducted vide memos Ex. PW 7/B and Ex.PW 7/C respectively. On , accused Ashok was produced before the court and his two days PC remand was obtained. 21. PW 07 HC Bhupender further deposed that during PC remand of accused Ashok, he was taken to Sangam Vihar for apprehension of other two coaccused. Accused Ashok took them outside the house of co accused Farman and Ali i.e. K 2 nd, 612, near Sai Baba Mandir, Gali No. 2, Sangam Vihar, Delhi where both of them were coming out and upon identification of accused Ashok, both of them were apprehended. Their disclosure statements were recorded which are Ex. PW 7/D1 and Ex. PW 7/D2. After that, both the co accused were arrested vide memos Ex. PW 7/E1 and PW 7/E2 and their personal searches were conducted vide memos Ex. PW 7/F1 and PW 7/F2. Accused Ashok and Ali were correctly identified by him in court as accused Farman was exempted from personal appearance through his counsel. 22. During his cross examination, PW 07 stated that on the day of incident, he was on evening patrolling duty at beat of Lado Sarai. He was called FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 12 of 39

13 at PS by SI Jitender Kashyap (IO). He had not made any departure entry at PS. He volunteered that departure entry at PS was made by IO SI Jitender Kashyap. They had gone to the spot in a Govt. Gypsy. However, he does not remember its registration number. They reached at the spot at around 8:30 8:45 PM. The distance between spot and PS is 4 5 km and it took about half an hour to reach the spot. He admitted that the spot is a residential area and IO had asked public persons to join the investigation, but they refused and left the spot. No written notice was served upon those persons who refused to join investigation. 23. PW 07 further stated during his cross examination that the secret information was received between 8:30 p.m. to 8:45 p.m. near the place where co accused were apprehended. He had no knowledge as to whether IO had reduced the said information in writing. Accused was arrested by IO at about 9:00 p.m. Disclosure statement of accused was recorded after his apprehension and before arrest, but he does not remember the time of recording of disclosure statement. HC Balwant had recorded the disclosure statement of accused on the bonnet of Govt. Gypsy. The place was illuminated by street light. However, he does not remember the distance between street light and Gypsy. They left the spot at about 9:30 09:45 PM. 24. PW 07 further stated during his cross examination that he does not remember the exact time of personal search memo of accused. He volunteered that it was prepared after apprehension and arrest of accused. They reached at FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 13 of 39

14 PS at about 10:00 PM. Accused was taken for medical examination at AIIMS from PS, but he does not remember the exact time. They returned from AIIMS at 10:30 PM. He could not say as to what is the distance between PS Saket and AIIMS. He denied that he had neither joined the investigation nor went to the spot. He denied that accused was not arrested at the spot and the documents (memos) were false and were prepared at PS to falsely implicate the accused in this case. 25. PW 08 SI Jitender Kashyap deposed that on the intervening night of & , he was on emergency duty from 8:00 p.m. to 8:00 a.m. At around 7:15 a.m., he received DD No. 79 B regarding accident which took place at Gitanjali Enclave, T point, red light, Press Enclave Road, Saket. He alongwith Ct. Prem Chand went to the spot where he found that two vehicles i.e. Maruti 800, white colour bearing no. DL 9C 2266 and DTC bus bearing no. DL 1PC 7026 were standing on the road in an accidental condition. He observed that the said Maruti car was damaged from front side and the DTC bus was damaged from rear left side. The said bus was standing on the road near Aurobindo College. He found that pieces of broken glass and plastic bottles were scattered on the road as well as inside the said Maruti car. 26. PW 08 SI Jitender Kashyap further deposed that he also found that cartons of illicit liquor had broken inside the said Maruti car. He also found that blood stains were lying on the dashboard of Maruti car and on the broken FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 14 of 39

15 glasses and the cartons. He met DTC driver namely Dhanpat Singh and co driver at the spot who told him that two persons were present in the said Maruti car who had sustained injuries in the said accident and were shifted to hospital by a motorcyclist. He recorded the statement of Dhanpat Singh and made endorsement on the same. He got FIR No. 250/11, PS Saket registered through Ct. Prem Chand. He also informed the PS regarding the recovery of illicit liquor. 27. PW 08 SI Jitender Kashyap further deposed that the said car was shifted to left side of the road. He collected the filled quarter bottles of illicit liquor and counted them. He found 900 quarter bottles of illicit liquor namely Falcon Orange Masaledar Deshi Sharab (180 ml each) for sale in Haryana only; 498 quarter bottles of illicit liquor namely NV Besto Whiskey (180 ml each) for sale in Haryana only; 185 quarter bottles of illicit liquor namely Bony Special whiskey (180 ml each) for sale in Haryana only at the spot. He informed the SHO who sent plastic bags at the spot and gave directions to register separate cases in respect of rash and negligent driving and Excise Act. 28. PW 08 SI Jitender Kashyap further deposed that he put the said illicit liquor bottles in the plastic bags and marked the same as serial no. 1 to 17. He took out one quarter bottler from each plastic bag and marked the samples as serial no. S 1A to S 17A. He prepared pullandas of the said illicit liquor as well as the sample and sealed them with the seal of JP which were seized vide seizure memo which is already Ex. PW 1/A. He filled Form 29 at the spot which FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 15 of 39

16 is Ex. PW 8/A. The seal was handed over to Ct. Prem Chand who came at spot after registering FIR No. 250/11, PS Saket. He prepared a rukka which is Ex. PW 8/B. He got the FIR registered through Ct. Prem Chand. 29. PW 08 SI Jitender Kashyap further deposed that after registration of FIR, further investigation of the case was assigned to HC Balwant who came at the spot alongwith Ct. Prem Chand. He handed over the seizure memo, Form M 29, case property to HC Balwant who prepared a site plan at his instance. HC Balwant (IO) recorded his statement. He lifted the blood stains from dash board of the Maruti car as well as from the pieces of glass and cartons and put them in four plastic jars which were marked as Mark A, B, C & D. He prepared a pullanda of the same and sealed it with the seal of JK which was seized vide seizure memo which is Mark X PW 08 SI Jitender Kashyap further deposed that on checking of the said car, he found one blue colour bag having mark of 'Gulf'. He found original RC of the said Maruti car which was in the name of Mohd. Hanif, blank Form 29 & 30 signed by Mohd. Hanif (running in six pages), one photocopy of Voter ID card of Soniya W/o Sh. Mahesh, three copies of RC in the name of Soniya W/o Sh. Mahesh, one OPD card in the name of Ashok Kumar of Deligent Hospital, Sangam Vihar, a test report of Ashok Kumar of Deligent Hospital, Sangam Vihar. He seized the said documents vide seizure memo which is Mark X2. Copy of RC and Forms 29 & 30 are already Ex. P 1 and Ex. P 2. He seized the said vehicles FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 16 of 39

17 vide seizure memos which are Mark X 3 and X PW 08 SI Jitender Kashyap further deposed that they returned to PS along with case property which were deposited in malkhana. He served notices U/s 133 of M.V. Act to the owner of the offending vehicle and it was revealed that the said vehicle was registered in the name of Mohd. Hanif who sold the same to Ashraf Ali. Ashraf Ali sold the vehicle to Sh. Jaan Mohammad. Sh. Jaan Mohammad sold the vehicle to Sh Yasin Khan and Sh Yasin Khan sold the same to accused Ashok. He searched for accused Ashok and came to know that accused was involved in the business of transporting of illicit liquor. Accused Ashok was not found at his home i.e. Gali No. 13, near Budh Bazar, Sangam Vihar. 32. PW 08 SI Jitender Kashyap further deposed that on the intervening night of & , he alongwith HC Balwant, HC Sukhlal and Ct. Bhupender went to the house of accused Ashok who was present there. They apprehended accused Ashok and after interrogation, 2 nd IO HC Balwant arrested him vide arrest memo which is already Ex. PW 7/B. IO recorded disclosure statement of accused which is already Ex. PW 7/A. HC Balwant (IO) obtained PC remand of accused Ashok during which he alongwith HC Balwant, HC Sukhlal and Ct. Bhupender went to H. No. K 2, Street No. 2, Sangam Vihar and apprehended accused persons namely Farman and Ali. FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 17 of 39

18 33. PW 08 SI Jitender Kashyap further deposed that IO arrested accused Farman and Ali vide arrest memo which are already Ex. PW 7/E1 and Ex. PW 7/E2. IO recorded their disclosure statements which are already Ex. PW 7/D1 and Ex. PW 7/D2. They returned to the PS alongwith accused persons who were sent to lockup after medical examination. On next day, he alongwith accused persons namely Farman and Ali went to AIIMS Hospital where their blood samples were obtained. The accused persons were produced before the court for participating in TIP proceedings, but they refused to join the TIP proceedings. 34. PW 08 SI Jitender Kashyap further deposed that he obtained the FSL report pertaining to the injuries sustained by accused Farman upon his forehead and eyes. He sent the said blood stains samples to FSL, Rohini for comparison and obtained the report in this regard. He correctly identified accused persons namely Ashok, Farman and Ali in court. He correctly identified the car i.e. Maruti 800 bearing no. DL 9C 2266 which is Ex. P During his cross examination, PW 08 stated that he was on emergency duty from 8:00 p.m. to 8:00 a.m. on the day of incident. He did not file the record of his duty hours. He went to spot on his private motorcycle bearing no. DL 3VD He admitted that vehicles were passing by from the spot, but he did not join any passengers of those vehicles in investigation. No written notice was served upon anyone. He finally left the spot between 1:45 p.m. to FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 18 of 39

19 2:00 p.m. He had informed the SHO about the incident after 30 minutes of reaching the spot i.e. at about 8:30 AM. 36. PW 08 further stated during his cross examination that the bags for seizing the case property were sent by SHO in the QRT vehicle. Neither handing over nor return memo of the seal was prepared by him. The seal was returned to him by Ct. Prem Chand on same day in the evening. However, he does not remember the exact time. Seizure memo was prepared at around 11:00 a.m. 12:00 p.m. and the liquor was taken to PS in QRT vehicle / govt. vehicle. However, he does not know its number or name of its driver. He does not know as to whether his statement was recorded by 2 nd IO or not. The Maruti van was towed to the PS by a crane which was provided by Jagdish Crane Services. However, he does not know the name of driver or registration number of crane. The name of driver of crane was not recorded. 37. PW 08 further stated during his cross examination that on Forms No. 29 & 30, only signatures of Mohd. Hanif were there, but the forms were blank. They went to Sangam Vihar in QRT vehicle. However, he does not remember its number or name of its driver. He did not record the statement of driver of QRT vehicle. He admitted that places of arrest of accused persons was residential area. They tried to search the public persons, but nobody was available due to late night time. They knocked the door of 2 3 houses, but nobody came out due to late night. They were in uniform. The width of said street FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 19 of 39

20 was around 20 ft and there were single storeyed and double storeyed houses in the said street. They remained at the spot for less than one hour. They did not make effort to knock the door of houses after the arrest of accused persons. 38. PW 08 further stated during his cross examination that the directions of street was East to West. He volunteered that the house of accused was situated at the end of street. They did not enter the house of the accused Ashok. He does not re collect the measurement of the house of accused Ashok. However, it was single storied. He denied that he never visited the spot nor the accused persons were arrested in his presence. He denied that the case properties were falsely planted upon accused persons. He also denied that the accused persons were called at PS and falsely implicated in the present case. He further denied that all the documents were prepared at PS and he signed the same at PS or that he was deposing falsely. 39. PW 09 2 nd IO HC Balwant deposed that on , he was posted as HC at PS Saket and on that day, the investigation of the case was entrusted to him after registration of FIR. During the course of investigation, he went to the spot at around 1:15 p.m. and met SI Jitender Kashyap and Sh. Dhanpat Singh (DTC bus driver). Two vehicles i.e. DTC bus and Maruti car bearing no. DL 9C 2266 were found in accidental condition. He inspected the said Maruti car and found smell of alcohol and broken quarter bottles of liquor. The car was damaged from the front and there were blood spots on the car s FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 20 of 39

21 dashboard. SI Jitender Kashyap handed over the sealed case property i.e. illicit liquor, seizure memos of illicit liquor, vehicles and Form M 29 at the spot. He prepared a site plan at the instance of SI Jitender Kashyap which is Ex. PW 9/A (inadvertently exhibited as Ex. PW 10/A) and recorded the statement of witnesses. The case properties were deposited in malkhana. 40. PW 09 HC Balwant further deposed that during the course of investigation, he interrogated regd. owner of said Maruti car namely Mohd. Hanif who disclosed that he had sold the said car to Sh. Ashraf Ali. He interrogated Ashraf Ali who disclosed that he had sold the said vehicle to Jaan Mohammad. He interrogated Jann Mohammad who disclosed that he had sold the said vehicle to Yasin Khan. He interrogated Yasin Khan who disclosed that he had sold the said vehicle to accused Ashok. 41. PW 09 HC Balwant further deposed that on at about 1:00 a.m. (night), he alongwith SI Jitender Kashyap, Ct. Bhupender, HC Sukhlal were present at Street No. 13, Budh Bazar, Sangam Vihar for the purpose of raid. One secret informer came there and pointed out towards a person who was coming from the said street and informed that the name of said person was Ashok who was wanted in present case. He apprehended the said person with help of Ct. Bhupender. On inquiry, the name of said person was revealed as Ashok, accused in the present case (correctly identified in court). FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 21 of 39

22 42. PW 09 HC Balwant further deposed that he interrogated accused Ashok who disclosed that he had purchased the said Maruti car from one Yasin Khan for a consideration of Rs. 14,000/. Accused Ashok further disclosed that he was transporting the illicit liquor from Haryana to Delhi when the vehicle met with an accident with the DTC bus and after the accident, he fled from the spot. He further disclosed that the said vehicle was being driven by co accused Ali and accused Farman (correctly identified in court) was sitting on the rear seat. He recorded disclosure statement of accused Ashok which is already Ex. PW 7/A. He arrested and carried out personal search of accused Ashok vide memos which are already Ex. PW 7/B and Ex PW 7/C respectively. 43. PW 09 HC Balwant further deposed that he obtained one day PC remand of accused Ashok. During PC remand, he alongwith Ct. Bhupender, SI Jitender Kashyap and the accused went to Street No. 2, Sangam Vihar where accused Ashok pointed out towards accused Ali and Farman who were coming from the said street. He apprehended the said accused persons, interrogated them and recorded their disclosure statements which are already Ex. PW 7/D1 and Ex. PW 7/D PW 09 HC Balwant further deposed that he arrested and carried out personal search of accused Ali and Farman vide memos which are already Ex. PW 7/E1 & Ex. PW 7/E2 and Ex. PW 7/F1 & Ex. PW 7/F2 respectively. The accused persons were produced before the concerned court for TIP proceedings FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 22 of 39

23 where they refused to participate in TIP proceedings. He obtained copies of TIP proceeding and recorded statements of witnesses. He prepared the Challan. 45. During his cross examination, PW 09 stated that on the day of incident, he was present in police station and no particular duty was assigned to him before being assigned investigation of the present case. He reached at the spot on his motorcycle bearing no. HR 35D Vehicles were plying on road and the accidental vehicles were shifted on the left side of road. He requested 4 5 public persons to join investigation, but none agreed and they left the spot without disclosing their names and address. No written notice was served upon those public persons due to paucity of time. He finally left the spot at around 2:00 p.m. 46. PW 09 further stated during his cross examination that case properties were shifted to malkhana, PS Saket in a govt. vehicle. He does not recollect the registration number as well as name of driver of said govt. vehicle. He did not record the statement of said driver of govt. vehicle. He did not prepare handing over and returning memo of the seal. He does not know as to who brought the said vehicle to PS. He volunteered that SI Jitender Kashyap (IO of accident case) had brought the said vehicle to PS. He deposited the case property i.e. illicit liquor in malkhana at around 2:30 p.m. SI Jitender Kashyap prepared the seizure memo, but he does not remember the exact time. FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 23 of 39

24 47. PW 09 further stated during his cross examination that no addition or alteration was made by him in seizure memo. He collected the documents i.e. Form 29 & 30 duly signed by Mohd. Hanif and photocopy of RC which are already Ex. P 2 (Colly) and Ex. P 1. No other document of the said vehicle was collected by him. He denied that he had intentionally not collected the documents of the said vehicle i.e. Form No. 29 & 30 from the respective owners and he recorded the statement of witnesses on his own. He denied that accused persons were falsely implicated in this case. They visited at Sangam Vihar in Govt. vehicle. However, he does not remember its registration number as well as the name of driver. 48. PW 09 further stated during his cross examination that he does not record statement of said driver. They left the PS at around 11:30 p.m. Departure entry was made. However, he does not remember its number. He admitted that place of arrest of accused Ashok was a residential area, but no public persons were available at the spot of arrest of accused Ashok due to night. Width of said street was around 20 ft and there were single storyed and double storyed houses in that street. He knocked the door of 2 3 of nearby houses, but nobody came out as it was late night. Disclosure statement of accused Ashok was recorded at around 1:00 a.m. (night) at the spot under the street light. They remained at the spot for about half an hour. 49. PW 09 further stated during his cross examination that he did not FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 24 of 39

25 carry out investigation to trace the source from where the said liquor was procured by accused persons. He denied that he never visited the spot nor he arrested any accused persons. He denied that the case properties were falsely planted upon accused persons. He also denied that the accused persons were called at PS and falsely implicated in the present case. He further denied that all the documents were prepared at PS or that he was deposing falsely. 50. The court has heard the arguments advanced by Ld. defence counsels for both accused persons and ld. APP appearing on behalf of the State and has perused the record with their able assistance. 51. It is emphatically contended by ld. counsel for accused persons that although, seventeen bags were used to store the case property, only fourteen bags were produced before the court. The case property was produced in the court in an unsealed condition. PW 01 has admitted in his cross examination that no seal was affixed on the plastic bags in his presence. Therefore, possibility of tampering with case property cannot be ruled out. The prosecution has failed to establish identity of case property beyond a reasonable doubt. Reliance is placed upon Dhanpat Vs. State of Punjab, 2000 (1) CCC, HC 52 stating that in the absence of link evidence regarding deposit of case property in intact condition in malkhana, benefit of doubt should be given to the accused. 52. Secondly, it is contended on behalf of accused persons that PW 09 FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 25 of 39

26 has stated during his cross examination that no alteration or addition was done after preparation of seizure memo which was prepared in his presence. Moreover, there are contradictions in the testimonies of PW 08, PW 09 and PW 04. PW 08 stated that the seizure memo was prepared between 11:00 AM 12:00 PM. PW 09 deposed that seizure memo was prepared in his presence. He had reached at the spot at about 1:15 PM. PW 04 deposed that he reached at the spot at 10:30 AM whereas the FIR was registered at 12:45 PM. These contradictions establish falsity of prosecution case. Reliance is placed upon judgment of Hon'ble High Court of Delhi delivered in the case of Zohra Vs. State 2000(1) JCC Thirdly, it is contended on behalf of accused persons that there are contradictions in the testimonies of prosecution witnesses as to how the seized liquor bottles were transported to the malkhana. PW 08 has deposed that the liquor was taken in QRT vehicle, but he does not know its registration number or name of driver. PW 09 deposed that he does not remember registration number of the Govt. vehicle and name of its driver. PW 04 has deposed that they went to the spot on a motorcycle, but he does not remember its registration number. 54. Fourthly, it is contended on behalf of accused persons that there are contradictory versions regarding handing over and returning memo in respect of seal of IO. While, PW 04 deposed that IO had prepared a handing over memo in respect of the seal, PW 08 deposed that no handing over memo in respect of FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 26 of 39

27 seal was prepared by him. 55. Fifthly, it is contended on behalf of accused persons that no secret information was reduced into writing. No public persons, as provided U/s 100 (4) Cr.P.C. were associated. There are contradictory versions regarding joining of independent public witnesses. PW 04 has deposed that he does not remember as to whether IO had requested any public person to join the investigation or not. PW 08 has deposed that he did not join any passengers of the vehicles passing by during investigation. He did not serve any notice upon anybody for failure to join investigation. PW 09 has deposed that he requested 4 5 public persons to join investigation, but none agreed and left the spot. Reliance is placed upon Ritesh Chakarvarti Vs. State of MP 2006 (4) CCC 405 (SC). 56. Sixthly, it is contended on behalf of accused persons that admittedly, secret information was not reduced into writing which casts serious doubts on the prosecution case. As per Chapter 22 Rule 49 of Punjab Police Rules, the time of arrival and departure from the police station is required to be entered in register no. II. Reliance is placed upon Rattan Lal Vs. State 1987 (2) Crimes, Seventhly, it is contended on behalf of accused persons that there is no incriminating evidence on record against accused Farman and Ali. As there is no evidence to connect them with recovery. The prosecution has not proved FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 27 of 39

28 report of Chemical Examiner. Therefore, the prosecution has miserably failed to establish its case. Reliance is placed upon judgment delivered by Hon'ble High court of Delhi in the case of Amit Vs. State 2009 (111) DRJ 76 (DB) and Prem Singh Vs. State 1996 Cri.L.J (Delhi High Court). 58. Eighthly, it is contended on behalf of accused Ashok Kumar that he has already been acquitted in connected case bearing FIR No. 250/11, PS Saket, vide judgment dated wherein it was held that the prosecution has chain of transfer of vehicle is not sufficient to prove ownership. 59. Per contra, it is emphatically contended by ld. APP for the State that as per testimony of PW 01 Sh. Dhanpat Singh, 14 plastic bags containing case property were produced and proved before the court, out of which seals of only some of the bags were found to be broken / illegible. Some bags duly sealed with legible seal of JK were produced and proved which were collectively exhibited as Ex. P 1. No question regarding seals of all the bags produced in the court being illegible was put to PW 01 during cross examination which implies that the accused persons conceded to this part of examination in chief of PW 01. Therefore, there is no merit in the contention of ld. defence counsel that the prosecution has failed to establish identity of case property beyond a reasonable doubt. 60. Secondly, it is contended by ld. APP for the State that it is well FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 28 of 39

29 settled proposition of law that minor discrepancies are bound to occur in the testimonies of witnesses due to lapse of time and consequent fading of memory. Reliance is placed upon judgment delivered by Hon'ble Supreme Court in the case of State of A.P. Vs. Kandagopaludu 2005 (3) SCC 116. However, there are no material contradictions in the testimonies of prosecution witnesses as has been claimed by ld. defence counsel for the accused persons. Admittedly, no question was put to first IO / PW 08 SI Jitender Kashyap regarding incorporation of FIR number on the seizure memo. Therefore, inference can be drawn to the effect that the ld. defence counsel refrained from asking question on this aspect as the IO would have probably explained that FIR number was written subsequently. There is no merit in the contention of ld. defence counsel regarding falsification of seizure memo and consequently prosecution case being vitiated. 61. Thirdly, it is contended by ld. APP for the State that there are no contradictions in the testimonies of PW 04, PW 08 and PW 09. PW 04 has only deposed as to how he and SI Jitender Kashyap reached at the spot. PW 08 and PW 09 have both deposed that the seized liquor bottles were transported to the police station in Govt. vehicle (QRT vehicle). Therefore, there is no merit in the contention of ld. defence counsel that there are contradictions in the testimonies of prosecution witnesses regarding transportation of seized liquor bottles to the police station. FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 29 of 39

30 62. Fourthly, it is contended by ld. APP for the State that the contradiction in the testimonies of PW 04 and PW 08, regarding preparation of handing over memo in respect of seal, are not material so as to discard the prosecution case. This contradiction is minor which do not have any bearing on the merits of this case as it is well settled proposition of law that even if case property is not at all produced before the court, the prosecution case cannot be discarded solely on that ground. 63. Fifthly, it is contended by ld. APP for the State that there are no contradictory versions regarding joining of independent witnesses as PW 08 and PW 09 had carried out investigation at different points of time. Moreover, testimonies of police witnesses cannot be discarded only on the ground that they have not been corroborated by independent public witnesses. 64. Sixthly, it is contended by ld. APP for the State that there was no time to get the secret information reduced into writing as the secret informer met the raiding party at Street No. 13, Budh Bazar, Sangam Vihar, New Delhi from where the accused Ashok was arrested immediately. Therefore, there is no merit in the contention of ld. defence counsel that failure to get the secret information recorded casts doubts upon the prosecution case. 65. Seventhly, it is contended by ld. APP for the State that the accused persons had not disputed the Excise Lab Report No to 4353 dated FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 30 of 39

31 in terms of section 294 Cr.P.C which was exhibited as Ex. A 3 on PW 01 Sh. Dhanpat Singh identified the accused Ali to be driver of the Maruti 800 car in which the liquor quarter bottles were being transported. No question was put to him on behalf of accused Ali during cross examination to controvert his identification as driver of the aforementioned Maruti 800 car. Therefore, there is no merit in the contention of ld. defence counsel that the prosecution has failed to establish identity of the accused Ali. 66. Eighthly, it is contended by ld. APP for the State that it has been established from the testimonies of PW 02, PW 03, PW 05 and PW 06 that the Maruti 800 car in question was purchased by Sh. Ashraf Ali from its registered owner Mohd. Hanif in the year Sh. Ashraf Ali sold the said car to Sh. Jaan Mohammad who further sold it to Sh. Yasin Khan and Sh. Yasin Khan finally sold it to accused Ashok Kumar. As per Section 52 (2) of Delhi Excise Act, 2009, there is a legal presumption regarding guilt of owner of the vehicle and the onus of proving exercise of due care in prevention of commission of offence is upon the owner. Therefore, the prosecution has established that accused Ashok Kumar owned the aforementioned car at the time of commission of the offence and judgment dated , in case FIR No. 250/11, PS Saket, U/s 5/180 of M.V. Act acquitting the accused Ashok Kumar cannot be taken into consideration while adjudicating the present case. 67. The court is of the considered view that the prosecution has proved FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 31 of 39

32 DD No. 79 B dated , PS Saket, Ex. A 2 after which first IO SI Jitender Kashyap and Ct. Prem Chand went to the spot. It has proved tehrir, Ex. PW 8/B; FIR, Ex. A 1. PW 01 Sh. Dhanpat Singh, driver of DTC bus bearing no. DL 1PC 7026 has proved that Maruti car bearing registration no. DL 9C 2266 was being driven by accused Ali in which liquor bottles seized vide seizure memo Ex. PW 1/A were being transported. He identified the seized plastic bags containing liquor quarter bottles as Ex. P 1 (Colly). It has proved seizure memo of Maruti 800 car, Ex. PW 1/C and the car, Ex. P 2. It has proved Form No. 29, Ex. PW 8/A; copy of RC, Ex. P 1; blank signed forms no. 29 & 30 as Ex. P 2 (Colly); site plan, Ex. PW 10/A; PWs 07, 08 & 09 have proved arrest of accused Ashok Kumar vide arrest memo, Ex. PW 7/B, his personal search memo, Ex. PW 7/C and his disclosrue statement, Ex. PW 7/A. They have proved arrest of accused Ali and Farman vide arrest memos, Ex. PW 7/E1, Ex. PW 7/E2, their personal search memos, Ex. PW 7/F1, Ex. PW 7/F2 and their disclosure statements, Ex. PW 7/D1 and Ex. PW 7/D2. Therefore, the prosecution has been able to establish recovery of liquor quarter bottles from Maruti 800 car bearing registration no. DL 9C 2266 which was being driven by accused Ali and owned by accused Ashok Kumar. 68. A perusal of testimony of PW 01 Sh. Dhanpat Singh shows that 14 plastic bags containing case property were produced and proved before the court, out of which seals of only some of the bags were found to be broken / illegible. Some bags duly sealed with legible seals of JK were produced and FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 32 of 39

33 proved which were collectively exhibited as Ex. P 1. Admittedly, no question regarding seals of all the bags produced before the court, being illegible was put to PW 01 during his cross examination which leads to the inference that the accused persons concede to identity of case property. Therefore, there is no merit in the contention of ld. defence counsel that the prosecution has failed to establish identity of the case property. 69. Secondly, the contradictions regarding time of preparation of seizure memo and arrival of Ct. Prem Chand and second IO HC Balwant at the spot are minor discrepancies which do not have any bearing upon the credibility of testimonies of prosecution witnesses. It is no longer res integra that minor discrepancies are bound to occur in the testimonies of witnesses due to lapse of time and consequent fading of memory. A perusal of testimony of PW 08 SI Jitender Kashyap shows that no question was put to him regarding addition of FIR number on the seizure memo so as to afford him an opportunity to explain / clarify about the same. PW 09 second IO HC Balwant Singh was merely given a suggestion to the effect that no addition or alteration was made by him in the seizure memo, although, admittedly, the seizure memo was not prepared in his presence. It is well settled proposition of law that mere writing of FIR number on arrest and seizure memos cannot entirely falsify those documents. Reference can be made to the decision rendered by Hon'ble Supreme Court of India in the case of Radhey Sham Vs. State of Haryana (2001) 10 SCC 206; decision rendered by Hon'ble High Court of Delhi in the cases of Ramesh Kumar Rajput FIR No. 251/11 PS Saket State Vs. Ashok Kumar & Ors 33 of 39

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