Delhi District Court
State vs Sonam on 24 December, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 529/2022
PS: Mohan Garden
U/s: 33 Delhi Excise Act
Case no. 2674/2023
State
Vs.
Sonam
W/o Sh. Deepak Kumar
R/o H. No. 96, Gali No. 35,
Vipin Garden Extension,
Mohan Garden, New Delhi. ..... Accused
S. No. of the case : 2674/2023
The date of offence : 12.09.2022
The name of the complainant : HC Ravi
The name of the accused : Sonam
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 12.09.2022, HC Ravi was on patrolling
duty in beat no. 7. When he reached near Gali No. 35, Vipin Garden Extension, he
saw accused was dragging two plastic kattas and was trying to put them in vacant
plot. 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 two plastic katta and found containing illicit liquor. He
FIR No.: 529/2022 State versus Sonam Page No. 1 of 13
informed about this to the DO. Thereafter, HC Pradeep Kumar along with W/HC
Kanta came to the spot. Thereafter, an FIR bearing no. 529/2022 u/s 33/38 Delhi
Excise Act was registered at PS Mohan Garden. Investigation of the case was
handed over to HC Pardeep Kumar 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., Sonam. 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. ASI Pardeep Kumar was examined as PW1. He stated that on
12.09.2022, he was posted at PS Mohan Garden as HC. On that day, on
receiving DD No. 97A regarding the apprehension of accused along
with illicit liquor he along with W/HC Kanta reached at the spot i.e
Gali No. 35, Vipin Garden Extension, where HC Ravi met him and
handed over the accused along with recovered liquor to him. He
requested some passers by to join the proceedings but none agreed and
left the place without disclosing their names and address. Thereafter,
the said kattas were checked it was found containing 150 qtr. Bottles in
each katta of ADS fresh mota masaledar desi shrab for sale in Haryana
180 ml. Thereafter, he took out one quarter bottle out of 300 quarter
bottles as sample and the rest of the case property sealed with the seal
of PK. The sample bottles were also sealed with the seal of PK. Form
M-29 was filled up by me Ex. PW-1/X bearing his signature at point X.FIR No.: 529/2022 State versus Sonam Page No. 2 of 13
Seizure memo of case property was prepared vide memo Ex. PW1/A
bears his signature at point X. Thereafter, he recorded statement of HC
Ravi which is Ex.PW1/B bears his attesting signature at point X and
prepared a rukka Ex.PW1/C bearing his signature at point X and
handed over the same to HC Ravi 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. He prepared the
site plan Ex.PW1/D bearing his signature at point X. He recorded
disclosure statement of accused Ex. PW-1/E bearing his signature at
point X. Accused was allowed to leave on furnishing the undertaking as
per the provisions of Section 41 Cr.P.C. Ex. PW-1/F 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. (Accused is present in the court today correctly identified by
the witness.) He can identify the case property if shown to him. (At this
stage MHC(M) produced one sealed quarter bottle of illicit liquor ADS
fresh mota masaledar desi shrab for sale in Haryana 180 ml sealed with
the seal of NS. Same is shown to the witness who correctly identify the
same recovered from the possession of the accused. The case property
Ex. A1.) (Remaining case property was destroyed vide order of this
Court dated 16.09.2023. Present FIR is mentioned at S no. 7 of the
same. Same is now taken on record as Ex.A2 (colly) (OSR).)
ii. In his cross examination PW 1 stated that he came at the spot at about
08:30 PM and left the spot at about 10:30 PM. HC Ravi went to PS for
registration of FIR at about 09:45 PM and came back at the spot at about
10:15 PM. There were houses and shops near the spot. No notice was
served to any public person. No seal handing over memo was preparedFIR No.: 529/2022 State versus Sonam Page No. 3 of 13
in his presence. He affirmed that he do not know my 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.
iii. HC Ravi was examined as PW 2. He stated that on 12.09.2022, he was
posted at PS Mohan Garden as HC. On that day, he was on patrolling
duty in beat no. 7. When he reached near Gali No. 35, Vipin Garden
Extension, he saw accused was dragging two plastic kattas and was
trying to put them in vacant plot. 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 two plastic katta and found containing illicit liquor. He
informed about this to the DO. Thereafter, HC Pradeep Kumar along
with W/HC Kanta 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 Pradeep Kumar
and accused to W/HC. IO inspected the said two plastic katta which was
found containing total 300 quarter bottles of mota masaledar desi sharab
for sale in Haryana only, 180 ml (150 quarter bottles in each plastic
katta), from which one quarter bottle from each plastic katta was taken
as sample, the same was sealed with the seal of PK and rest of the quarter
bottles were placed in the respective white katta and sealed with the seal
of PK. IO prepared seizure memo vide already Ex. PW1/A bearing his
signature at point A. IO filled M29 form. After that IO recorded his
FIR No.: 529/2022 State versus Sonam Page No. 4 of 13
statement which is already Ex. PW1/B (bearing his signature at point A)
and prepared the rukka in his presence already 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 already Ex. PW1/D bearing
his signature at point A. IO recorded disclosure statement of accused
vide memo already Ex. PW1/E (bearing his signature at point A). IO
released the accused by giving notice under section 41A Cr.P.C. already
Ex. PW1/F. IO recorded his statement u/s 161 Cr.P.C. He can identify the
accused. (Accused is absent. Ld. Counsel for accused submits that her
identity is not disputed.) He can identify the case property, if shown to
him. (Ld. Counsel for accused submits that identity of case property is
not disputed as same is already Ex. A1 and A2 (colly) (OSR).)
iv. In his cross examination PW 2 stated that IO came at the spot at about
08:45 PM and left the spot at about 10:30 PM. He went to PS for
registration of FIR at about 09:30 PM and came back at the spot at about
10:15 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
in e-rickshaw by IO. 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.
FIR No.: 529/2022 State versus Sonam Page No. 5 of 13
5. Statement of accused was recorded under Section 294 CRPC and she admitted the
following documents:
(a) FIR No. 529/2022 PS-Mohan Garden along with certificate
under Section 65B IEA as Ex. P1 (colly).
(b) Entry in register no. 19 at RC No. 324/21/22 as Mark X.
(c) Report of Excise Lab as Ex. P3.
(d) Statement of HC Mahender Ex P4.
(e) GD No 97A dated 12.09.2022 Ex P2
6. Thus, witness at serial No 2, 3, 4, 5 and 6 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 07.09.2024 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
the matter.
FIR No.: 529/2022 State versus Sonam Page No. 6 of 13
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/IO 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 two
respectable persons of the society. However, no public person has been joined by
FIR No.: 529/2022 State versus Sonam Page No. 7 of 13
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 1/IO in his cross examination stated that no seal handing over memo was
prepared. PW 2 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.
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
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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 1/IO in his
examination categorically stated that he prepared the seizure memo and Form M
29 and thereafter he recorded the statement of PW 2 and prepared the rukka and
after the preparation of rukka he got the FIR registered through PW2. The same
has been stated by PW 2 in his examination. Thus, it is clear from the testimony of
PW 2 and PW 1/IO that the seizure memo and Form M 29 was prepared before the
tehrir/original rukka was handed over by PW1 IO to PW2 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
seizure memo and Form M 29 since the number of the FIR could have come to
knowledge of PW 1/IO only after a copy of the FIR was brought to the spot by PW
FIR No.: 529/2022 State versus Sonam Page No. 9 of 13
2. 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 into
existence before the registration of the case. These are
few of the circumstances which create a doubt, in myFIR No.: 529/2022 State versus Sonam Page No. 10 of 13
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 these
documents after its registration. In both the situations, it
seriously reflects upon the veracity of the prosecutionFIR No.: 529/2022 State versus Sonam Page No. 11 of 13
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.
IV. No departure or the arrival entry of PW 2.
22. The present case rests entirely on the alleged recovery of case property, i.e. illicit
liquor, from the possession of the accused at the relevant time by a police official
PW 2, who was on patrolling duty at the relevant time and place, as per the
prosecution story.
23. Police officials are under a statutory duty to mark their departure and arrival in the
register kept in the police station for the purpose as per the Punjab Police Rules.
Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival
and departure on duty at or from a police station of all enrolled police officers of
whatever rank, whether posted at the police station or elsewhere, with a statement
of the nature of their duty shall be entered vide a separate entry and this entry shall
be made immediately on arrival or prior to the departure of the officer concerned
and shall be attested by the latter personality by signature or seal. In the present
case, no departure or the arrival entry has been proved on the record by the
prosecution. In absence of the departure and arrival entry of the police officials
their presence at the spot cannot be believed. Reference can be placed upon Rattan
Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
“if the investigating agency deliberately ignores to
FIR No.: 529/2022 State versus Sonam Page No. 12 of 13
comply with the provisions of the Act, the courts will
have to approach their action with reservations. The
matter has to be viewed with suspicion if the provisions
of law are not strictly complied with and the least that
can be said is that it is so done with an oblique motive.
This failure to bring on record, the DD entries creates a
reasonable doubt in the prosecution version
and attributes oblique motive on the part of the
prosecution.”
24. In the present matter there exists no entry which could even remotely suggest that
PW 1 was assigned patrolling duty on the given date and time and he went for the
purpose of patrolling at the given date and time.
25. 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 Sonam W/o Sh. Deeak Kumar 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 13 pages and each page
bears my signature.
(Harshal Negi)
JMFC-02/DwarkaCourt,
New Delhi, 24.12.2024
FIR No.: 529/2022 State versus Sonam Page No. 13 of 13