Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 03.12.2024
Pronounced on : 18.12.2024
+ CRL.REV.P. 1278/2024 & CRL. M. (BAIL) 1856/2024
DOLLY .....Petitioner
Through: Mr. Basant Kr. Singh and Mr.
Bhupendra Singh, Advocates.
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Laksh Khanna, APP for State
along with SI Nitin Panwar P.S.
Timarpur.
+ CRL.REV.P. 1305/2024 & CRL. M. A. 1938/2024
PAWAN .....Petitioner
Through: Mr. Basant Kr. Singh and Mr.
Bhupendra Singh, Advocates.
versus
THE STATE GOVERNMENT OF NCT OF DELHI.....Respondent
Through: Mr. Laksh Khanna, APP for State
along with SI Nitin Panwar P.S.
Timarpur.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. By way of present revision petitions, the revisionists seek to assail the
common Judgement dated 26.10.2024 passed in Crl. A. Nos. 127/2024 and
128/2024 by the Principal District and Session Judge, District Central, Tis
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CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 1 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00
Hazari Courts, Delhi in proceedings arising out of FIR No. 309/2016
registered under Sections 33/52 of the Delhi Excise Act and Sections
3/181/146/196/5/180 of the M.V. Act.
2. The Trial Court vide judgement dated 17.11.2023 convicted the
revisionist/ Dolly under Sections 52/33 Delhi Excise Act and Section 5/180
MV Act and revisionist/ Pawan under Section 33 of Delhi Excise Act and
under Sections 3/181/146/195 MV Act. Vide order on sentence dated
28.02.2024, the revisionist/ Dolly was sentenced to undergo RI for nine
months for the offence under section 52/33 of Delhi Excise Act with fine of
Rs.50,000/- and in default to undergo two months SI and sentenced to 15
days SI for offence under section 5/180 MV Act. On the other hand, the
revisionist/ Pawan was sentenced to undergo RI for nine months for offence
under section 33 of Delhi Excise Act with fine of Rs.50,000/- and in default
to undergo two months SI and sentenced for 15 days SI for offence under
section 3/181 and 146/196 of MV Act. Benefit of Section 428 Cr.P.C. was
given to both of them.
3. The revisionists herein, namely Dolly and Pawan , preferred Criminal
Appeals No. 127/2024 and 128/2024 respectively against the
abovementioned judgement and order on sentence. Vide the impugned
judgement, the appellate court upheld the convictions of both the revisionists
but modified the sentence of the revisionist/Dolly to the extent that she was
awarded the minimum sentence, i.e. RI for 6 months for the offence under
section 52/33 of Delhi Excise Act while the rest of her sentence was not
interfered with.
4. In a nutshell, the case of the prosecution is that on 08.07.2016, the
complainant HC Johnson and Ct. Krishan Pal, while on patrolling duty, were
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CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 2 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00
checking vehicles at Gopalpur red-light. One Accent car bearing no.
DL2CW6556 was stopped for checking at about 8.30 pm and from its boot,
22 boxes containing illicit liquor was recovered. The car was being driven
by the revisionist/ Pawan who did not have any license, insurance or permit.
The car was found to be registered in the name of revisionist/Dolly.
5. Learned counsel for the revisionists contends that the revisionists are
innocent and have been falsely implicated in the present case on the basis of
a doubtful recovery and that there are glaring discrepancies in the statement
of the police witnesses and the case property with respect to the description
of the alcohol bottles which would show that the prosecution has miserably
failed to prove the recovery beyond reasonable doubt. In support of this
contention, learned counsel submits that though in the Rukka and FIR, it is
mentioned that paper labels were pasted on all quarter bottles, however
when the case property was produced in trial, some of the quarter bottles
were bereft of any labels, which clearly illustrates that the case property is
not the same as shown in the seizure memo. It is further submitted that the
PW10 also stated in his examination that each quarter bottle had paper label
saying “YesGoa Premium Whiskey for Sale in Arunachal Pradesh only”
(hereafter, “the paper label”) but when the case property was opened in the
presence of the Presiding Officer, the said label was not present on some
bottles. It is also contended that while as per the recovery shown to have
been effected, the labels of “YesGoa” were also present on the boxes,
however the witnesses have denied that the labels were present on the boxes
as well.
6. Learned APP for the State, on the other hand, has vehemently
opposed the present petition and submits that the Appellate Court did not
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CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 3 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00
fall in any error while upholding the conviction of the revisionists. He
submits that PW2, PW3, PW4, PW5, PW6 and PW10 all in their statements
have consistently mentioned that each quarter bottle had „the paper label‟.
Moreover, it is submitted that the very fact that the paper label was present
on some of the bottles would show that the label was present on the bottles
originally and it is possible that the label came off of some of the bottles
with the passage of time. Learned APP further submits that the seizure was
made of the quarter bottles and not the boxes in which they were present and
therefore any discrepancy in the Rukka and the statements of witnesses with
regard to the presence of a label on the boxes would be of no consequence.
7. I have heard learned counsel for the parties and gone through the
records.
8. Both the revisionists in the present case have been convicted under
Section 33 of the Delhi Excise Act. The same is reproduced below for
convenience:-
33. Penalty for unlawful import, export, transport, manufacture,
possession, sale, etc.
(1) Whoever, in contravention of provision of this Act or of any rule or
order made or notification issued or of any licence, permit or pass,
granted under this Act— •
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil,
implement or apparatus, whatsoever, for the purpose of manufacturing
any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the Government
logo or logo of any State or wrapper or any other thing in which liquor
can be packed or any apparatus or implement or machine for the purpose
of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond
the prescribed quantity, shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to three
years and with fine which shall not be less than fifty thousand rupees but
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CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 4 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00
which may extend to one lakh rupees.
9. For sustaining a conviction under Section 33 of the Delhi Excise Act,
the prosecution has to prove that firstly, the accused was found in possession
of the illicit liquor and secondly, he possessed the same without any licence,
permit or pass.
10. Section 52 of the Excise Act is also relevant for the purpose of the
present case and the same reads as follows:-
52. Presumption as to commission of offence in certain cases
(1) In prosecution under section 33, it shall be presumed, until the
contrary is proved, that the accused person has committed the offence
punishable under that section in respect of any intoxicant, still, utensil,
implement or apparatus, for the possession of which he is unable to
account satisfactorily…
11. A careful reading of the said section would show that though there is
a provision for presumption against the accused, the same only comes into
operation once the prosecution successfully establishes the factum of
recovery of the alleged articles from the accused. Section 52 of the Act does
not do away with the responsibility of the prosecution to prove beyond
reasonable doubt the recovery of illicit liquor from the accused.
12. In the present case, the seizure memo is dated 08.07.2016 which was
exhibited as Ex PW4/A. The memo records that every box had „YESGOA
PREMIUM‟ written on it and each box had 48 quarter bottles each of which
had a label with „for sale in Arunachal Pradesh‟ written on it. The memo has
been signed by PW4/ Ct. Rajdeep and PW10/ HC Jauhari Singh. PW4 in his
testimony stated that each quarter had „the paper label‟. He also admits to
his signatures on the Seizure memo. PW10 also stated in his testimony that
each quarter bottle seized had „the paper label‟. He also admitted to his
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CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 5 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00
signature on the seizure memo Ex. PW4/A.
However, when the case property Ex.P1 was examined in the
presence of the Presiding Officer, out of 22 boxes, in one of the boxes, some
of the bottles were even found to be without „the paper label‟. PW4
identified it to be the property which was recovered from possession of the
revisionist/Pawan. In the cross examination of PW4, he stated that he had
checked all the bottles in the 22 boxes at the time of seizure.
13. It is also pertinent to note that the case property was produced in trial
court. The case of the prosecution is that every quarter bottle had „the paper
label‟. This stand is consistent across the seizure memo as well as the
statements of PW4 and PW10. However, when the case property was
desealed, it was observed that some of the bottles had the paper label
missing. If the label had come off due to the passage of time, atleast some of
the separated paper labels would have been found in the boxes. However,
nothing on record has been shown to prove that any loose paper label was
found. The prosecution has failed to explain the above contradiction and the
same casts a long shadow on the genuineness of the alleged recovery.
14. Since the defence has been able to cast a shadow of doubt on the
alleged recovery due to absence of the paper labels, in the opinion of this
Court, the ingredients of offence are not conclusively proved against the
revisionist/ Pawan and its benefit must flow to him. Accordingly, the
conviction of revisionist/ Pawan under Section 33 of the Delhi Excise Act is
set aside and he is acquitted of the same. Since the revisionist/ Dolly has
been convicted in her capacity as the owner of the vehicle from which the
alleged liquor was seized, on failure to conclusively prove the recovery
against the revisionist/ Pawan , her conviction under Section 33/52 of the
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CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 6 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00
Excise act is also set aside and she is acquitted of the said charge.
15. So far as the conviction of the revisionists under MV Act is
concerned, the same has not been put to any serious challenge and is upheld.
However, a perusal of the Nominal Roll of the revisionists would show that
both of them have already undergone the 15 days SI awarded under the MV
Act.
16. The revisionists are set free unless required in any other case.
17. Let a copy of this judgment be communicated to the concerned Trial
court as well as to the concerned Jail Superintendent for information and
necessary compliance.
MANOJ KUMAR OHRI
(JUDGE)
DECEMBER 18, 2024
NA
Signature Not Verified
CRL.REV.P. 1278/2024 & CRL.REV.P. 1305/2024 Page 7 of 7
Digitally Signed
By:GAUTAM ASWAL
Signing Date:18.12.2024
18:58:00