Delhi District Court
State vs Poonam on 24 December, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 1097/2022
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 7080/2023
State
Vs.
Poonam
W/o Sh. Devi Dass
R/o A-193, Gali No. 6,
Mahavir Enclave, Part II, Dabri, New Delhi. ..... Accused
S. No. of the case : 7080/2023
The date of offence : 20.12.2022
The name of the complainant : Ct. Dinesh
The name of the accused : Poonam
The offence complained : 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 24.12.2024
The date of order : 24.12.2024
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief facts:
1.
It is the case of the prosecution that on 20.12.2022, HC Dinesh was on patrolling
duty in beat no. 3. When he reached near Nala Service Road, Gali No. 6, Mahavir
Enclave Part II, he saw accused sitting outside A-193. On seeing him in uniform,
she started moving towards A-193 along with plastic katta. On seeing her moving,
he ran towards her and stopped her, asked her what is inside the plastic katta. Upon
asking, she did not give any satisfactory answer and thereafter, he checked the
plastic katta and found containing illicit liquor. He informed about this to the DO.
FIR No.: 1097/2022 State versus Poonam Page No. 1 of 12
Thereafter, HC Mahesh Kumar along with W/HC Anita came to the spot.
Thereafter, an FIR bearing no. 1097/2022 u/s 33/38 Delhi Excise Act was
registered at PS Dabri. Investigation of the case was handed over to HC Mahesh
Kumar Meena who filed the chargesheet.
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed
against the present accused, i.e., Poonam. After taking cognizance of the offence,
the accused was summoned to face trial.
3. On her appearance, a copy of chargesheet along with documents were supplied to
the accused in terms of Section 207 of the Code of Criminal Procedure
(hereinafter referred to as ‘CrPC‘). On finding prima facie case against the
accused, a charge under section 33 Delhi Excise Act was framed against her, to
which she had pleaded not guilty and claimed trial.
4. During the course of the trial the prosecution examined the following witnesses:
i. HC Dinesh was examined as PW 1. He stated that on 20.12.2022, he
was posted at PS Dabri as Constable. On that day, he was on patrolling
duty in beat no. 3. When he reached near Nala Service Road, Gali No. 6,
Mahavir Enclave Part II, he saw accused sitting outside A-193. On
seeing him in uniform, she started moving towards A-193 along with
plastic katta. On seeing her moving, he ran towards her and stopped her,
asked her what is inside the plastic katta. Upon asking, she did not give
any satisfactory answer and thereafter, he checked the plastic katta and
found containing illicit liquor. He informed about this to the DO.
Thereafter, HC Mahesh Kumar along with W/HC Anita came to the
spot. IO asked 4-5 public person to join the investigation but they
refused to join the same by stating their personal reasons and without
stating their names. He handed over abovesaid plastic katta full of illicit
liquor to the IO/HC Mahesh Kumar and accused to W/HC Anita. IOFIR No.: 1097/2022 State versus Poonam Page No. 2 of 12
inspected the said plastic katta which was found containing total 60
quarter bottles of mota masaledar desi sharab for sale in Haryana only,
180 ml, from which two quarter bottles from plastic katta was taken as
sample, the same was sealed with the seal of MK and rest of the quarter
bottles were placed in the white katta and sealed with the seal of MK. IO
prepared seizure memo vide Ex. PW1/A bearing his signature at point
A. IO filled M29 form. After that IO recorded his statement which is Ex.
PW1/B (bearing his signature at point A) and prepared the rukka in his
presence Ex. PW1/C. After that IO handed over seal to him and gave
him rukka for registration of FIR. Thereafter, he went to PS and got the
FIR registered, after sometime, he came back at the spot and handed
over copy of FIR and original rukka to IO. IO prepared the site plan at
his instance Ex. PW1/D. IO recorded disclosure statement of accused
vide memo Ex. PW1/E. IO released the accused by giving notice under
section 41A Cr.P.C. IO recorded his statement u/s 161 Cr.P.C. He can
identify the accused. (Accused is present in the court and correctly
identified by the witness.) He can identify the case property, if shown to
him. (At this stage, MHC(M) has produced the case property i.e. one
sealed plastic katta sealed with the seal of MK. Same is opened with the
permission of court which was found containing 58 quarter bottles of
mota masaledar desi sharab for sale in Haryana only, 180 ml. The same
is correctly identified by the witness as recovered from the accused
person. The same is Ex.A1 (colly).)
ii. In his cross examination he stated that IO came at the spot at about
09:00 PM and left the spot at about 10:30 PM. He went to PS for
registration of FIR at about 10:15 PM and came back at the spot at about
10:30 PM. There were houses and shops near the spot. No notice was
FIR No.: 1097/2022 State versus Poonam Page No. 3 of 12
served to any public person. No seal handing over memo was prepared
in his presence. Case property was taken to PS on his bike. He denied
that nothing incriminating has been recovered from the possession of
the accused or at the instance of accused or that all the proceedings had
been conducted while sitting at PS or that he is deposing falsely.
iii. HC Mahesh was examined as PW 2. He stated that on 20.12.2022, he
was posted at PS Dabri as HC. On that day, on receiving DD No. 123A
regarding the apprehension of accused along with illicit liquor he
along with W/HC Anita reached at the spot i.e A-193, Gali No. 6,
Mahavir Enclave, Part II, Delhi where Ct. Dinesh met him and handed
over the accused along with recovered liquor to him. The custody of
the accused who disclosed her name to be Poonam was handed over to
W/HC Anita. He requested some passers by to join the proceedings but
none agreed and left the place without disclosing their names and
address. Thereafter, the katta was checked it was found containing 60
qtr. Bottles of mota masaledar desi sharab for sale in Haryana only.
Thereafter, he took out two quarter bottles as sample and the rest of the
case property sealed with the seal of MK. The sample bottles were also
sealed with the seal of MK. Form M-29 was filled up by him at the spot
which is now Ex. PW-2/A bearing his signature at point X. Seizure
memo of case property was prepared vide memo already Ex. PW1/A
bears his signature at point X. Thereafter, he recorded statement of Ct.
Dinesh which is already Ex.PW1/B bears his attesting signature at
point X and prepared a rukka already Ex.PW1/C bearing his signature
at point X and handed over the same to Ct. Dinesh for the registration
of the case. He went to PS and after getting the case registered returned
to the spot and handed over the copy of FIR and original rukka to him.
FIR No.: 1097/2022 State versus Poonam Page No. 4 of 12
He prepared the site plan already Ex.PW1/D bearing his signature at
point X. Accused was interrogated and her disclosure statement was
recorded which is already Ex. PW-1/E bearing his signature at point X.
Thereafter, she was allowed to leave on furnishing the undertaking as
per the provisions of Section 41 Cr.P.C Ex. PW-2/B bearing his
signature at point X. Thereafter, they left the spot case property and
samples were deposited in the malkhana. He recorded the statement of
witnesses. During investigation, the sample case property was sent to
Excise laboratory and its report was put on record. Upon concluding
the investigation, he filed the chargesheet before the Hon’ble Court.
(Accused is absent. Ld. Counsel for accused submits that identity of
accused is not disputed.) He can identify the case property if shown to
him. The case property is already Ex. A1 (colly) and hence, its identity
is dispensed with.
iv. In his cross examination PW 2 stated that he came at the spot at about
09:30 PM and left the spot at about 11:30 PM. Ct. Dinesh went to PS for
registration of FIR at about 10:15 PM and came back at the spot at about
10:45 PM. There were houses and shops near the spot. No notice was
served to any public person. No seal handing over memo was prepared
in his presence. He affirmed that he do not know his departure or arrival
entries pertaining to the day of incident. Case property was taken to PS
on his bike. He denied that nothing incriminating has been recovered
from the possession of the accused or at the instance of accused or that
all the proceedings had been conducted while sitting at PS or that he is
deposing falsely.
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5. Statement of accused was recorded under Section 294 CRPC and she admitted the
following documents:
(a) FIR No. 1097/2022 PS-Dabri as Ex. P1 (colly).
(b) GD No 115A and 123A both dated 20.12.2022 as Ex P2 and Ex
P3 respectively.
(c) GD No 79A dated 21.12.2022 as Ex P4.
(d) Entry in register no. 19 at RC No. 29/21/22 as Mark X.
(e) Report of Excise Lab as Ex. P5.
(f) Statement of Ct Tejvir Ex P6.
6. Thus, witness at serial No 2, 5, 6, AND 7 were dropped from the list of witness.
7. The prosecution evidence was closed and thereafter the statement of accused u/s
313 CrPC r/w Section 281 CrPC was recorded on 06.11.2024 wherein all the
incriminating evidence appearing against the accused was put to her, which she
had denied to be correct and submitted that she was not found in possession of
illicit liquor. That she was falsely implicated in this present case. That she is
innocent and all the witnesses deposing against her are interested witnesses. The
accused chose not to lead any evidence in her defence.
8. It is argued by Ld. APP for the State that it is clear from the statement of the
complainant and other witnesses as well as the documents appearing on record
that the accused was in possession of illicit liquor. He has thus, submitted that the
prosecution has proved its case beyond reasonable doubt against the accused and
she be, therefore, held guilty and convicted for the above-said offence.
9. Per contra, Ld. Counsel for the accused has argued that the State has failed to
establish its case beyond reasonable doubt and since nothing incriminating has
appeared against the accused, she be, therefore, acquitted for the offence charged.
10. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused
the record, gone through the relevant provisions of law and given my thoughts to
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the matter.
Findings of the Court
11. Before embarking on the analysis and appreciation of the statements and
evidences on record it is apposite to state that to bring home the guilt of the
accused in any criminal matter beyond the shadow of reasonable doubt the burden
rests always upon the prosecution. The burden of proof on the prosecution is
heavy, constant and does not shift. The case of the prosecution needs to stand on its
own footing failing which benefit of doubt ought to be given in favour of the
accused. Needless to say, in this case also, with or without defense evidence, the
prosecution has to establish its case beyond reasonable doubt. On the touchstone
of the above settled legal proposition the facts of the present case are to be
analysed.
I. Non-joining of Public Witnesses
12. One of the arguments of Ld. Counsel for the accused is that since no independent
witness has been joined at the time of investigation, it is, therefore, difficult to
believe the prosecution version as it creates a doubt on the veracity of the
statement of police witnesses.
13. This court has given its thoughts to the above contention of Ld. Counsel for the
accused. Perusal of the testimony of PW-1 and PW 2 reveal that they have
categorically stated that there were residential houses and public persons were
passing by. They had also asked public persons to join the investigation, but none
of them had agreed. Thus, it is not the case of the prosecution that no public
person was present at or near the spot of recovery. However, it is equally true that
no steps are shown to have been taken to note down the names and addresses of
those persons. It is a well settled proposition of law that non-joining of public
witness throws doubt over the fairness of the investigation by police. Section 100
(4) of the CrPC also casts a statutory duty on an official conducting search to join
FIR No.: 1097/2022 State versus Poonam Page No. 7 of 12
two respectable persons of the society. However, no public person has been joined
by the IO in the present case.
14. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469 ,
Hon’ble High Court of Delhi has observed as under:
“The recovery was from a street with houses on both
sides and shops nearby. And, yet no witness from the
public has been produced. Not that in every case the
police officials are to be treated as unworthy of reliance
but their failure to join witnesses from the public
especially when they are available at their elbow, may,
as in the present case, cast doubt. They have again
churned out a stereotyped version. Its rejection needs no
Napoleon on the Bridge at Arcola (Emphasis supplied).
15. In the present case also, non-joining of any public person as a witness creates
doubt on the case of the prosecution. Although, this Court is conscious of the fact
that it is a well settled law that the prosecution case cannot be thrown out or
doubted on the sole ground of non-joining of public witnesses as they keep
themselves away from the Court unless it is inevitable, however, in the present
case, it is not only the absence of public witnesses which raises a doubt on the
prosecution version but there are other circumstances too, as discussed in the later
part of the judgment, which raise suspicion over the prosecution case.
II. No seal Handing over memo.
16. PW 2/IO in his cross examination stated that no seal handing over memo was
prepared. PW 1 also stated that no seal handing over memo was prepared. Thus, in
the instant case no handing over memo of the seal was prepared which can suggest
that case property remained intact and there is no tampering with the same.
FIR No.: 1097/2022 State versus Poonam Page No. 8 of 12
17. As per evidence available on record, the seal after use was not given to any
independent public person. Further, there is nothing on record to prove whether
the said seal was ever deposited in the Malkhana of Police Station or not. In such
case, tampering with case property can also not be ruled out. As a result, the
benefit of doubt has to be given to the accused. Reliance is placed upon the
decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon’ble High Court
of Delhi observed:
“9. … The seal after use were kept by the police officials
themselves therefore the possibility of tempering with
the contents of the sealed parcel cannot be ruled out. It
was very essential for the prosecution to have
established from stage to stage the fact that the sample
was not tempered with. …… Once a doubt is created in
the preservation of the sample the benefit of the same
should go to the accused.”
III. Discrepancy in the case qua Seizure Memo and Form M 29.
18. There exists yet another discrepancy in the case of the prosecution. PW 2/IO in his
examination categorically stated that he prepared the seizure memo and Form M
29 and thereafter he recorded the statement of PW 1 and prepared the rukka and
after the preparation of rukka he got the FIR registered through PW1. The same
has been stated by PW 1 in his examination. Thus, it is clear from the testimony of
PW 1 and PW 2/IO that the seizure memo and Form M 29 was prepared before the
tehrir/original rukka was handed over by PW2 IO to PW1 for registration of the
FIR. The FIR was thus, admittedly registered after the preparation of the seizure
memo and Form M 29, however, surprisingly it bears the FIR number and it is thus
worth wondering that if the FIR was never registered at the time when the seizure
memo and Form M 29 were prepared, how the FIR number came to be noted in the
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seizure memo and Form M 29 since the number of the FIR could have come to
knowledge of PW 2/IO only after a copy of the FIR was brought to the spot by PW
1. Thus, the number of FIR in no circumstances could have been mentioned by the
IO on the seizure memo and Form M 29, which came into existence before
registration of the FIR.
19. In this context, Hon’ble High Court of Delhi in Pawan Kumar v. The Delhi
Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
“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. 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 intoFIR No.: 1097/2022 State versus Poonam Page No. 10 of 12
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 another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859 , the
Hon’ble High Court of Delhi while dealing with an appeal under the Narcotic
Drugs and Psychotropic Substances Act, 1985 has also observed about the
discrepancy, i.e., appearance of FIR number on seizure memo and other
documents before registration of FIR and it runs as under:
“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 theseFIR No.: 1097/2022 State versus Poonam Page No. 11 of 12
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 light of the abovesaid judgments, the mentioning of the number of FIR in
the seizure memo creates serious doubt on the prosecution version and alleged
recovery of illicit liquor and it leads to only one conclusion that either the said
document was prepared later on or that the FIR was registered earlier in point of
time. In both the aforesaid eventualities, a reasonable doubt has been raised on the
version of the prosecution the benefit of which has to be given to the accused.
22. Thus, in light of the above discussions which throws doubt on the authenticity of
the prosecution version, this court is of the opinion that prosecution has failed to
prove its case beyond reasonable doubt that illicit liquor was recovered from the
possession of the accused. The accused Poonam W/o Sh. Devi Dass is, therefore,
acquitted of the offence u/s 33 Delhi Excise Act.
Announced in the open court on 24.12.2024.
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 24.12.2024
It is certified that the present judgment runs into 12 pages and each page
bears my signature.
(Harshal Negi)
JMFC-02/DwarkaCourt,
New Delhi, 24.12.2024
FIR No.: 1097/2022 State versus Poonam Page No. 12 of 12