Delhi District Court
State vs Smt. Bimla Devi on 23 August, 2025
1
IN THE COURT OF SH. SAURABH GOYAL,
JUDICIAL MAGISTRATE FIRST CLASS-01, DWARKA COURTS, DELHI
State Vs. : Bimla Devi
FIR No : 772/2022
U/s : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
CNR NO. : DLSW022278662024
1. Criminal Case No. : 203093/2024
2. Date of commission of offence : 20.11.2022
3. Date of institution of the case : 10.09.2024
4. Name of the complainant : State
5. Name of accused & parentage : Bimla Devi
W/o Lt. Sh. Madan Lal
6. Offence complained or proved : U/s 33 Delhi Excise Act.
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 23.08.2025
9. Final order : Acquittal
10. Date of final order : 23.08.2025
JUDGMENT
1. The accused Bimla Devi is facing trial for offence U/S 33 Delhi Excise Act
with the allegations that on 20.11.2022 at about 8:00PM at Near Neha Green Garden,
Pakora Park, Nasir Pur Road, Mahavir Enclave, New Delhi, within the jurisdiction of
PS Palam Village, accused was found in possession of 96 plastic Quarter bottles of
Masaledar Desi Sharab Santara Raseela for sale in Haryana Only (180 ML Each),
without any permit or license from Govt. of NCT of Delhi and thereby accused
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committed the offences punishable U/S 33 Delhi Excise Act. The criminal law was set
into motion by registration of FIR against the accused and investigation into the case
began. After completion of the investigation, the present charge-sheet was filed for
conducting trial of the accused for the alleged offence.
2. After taking cognizance of the offence, the copies of charge-sheet was supplied
to the accused in compliance of section 207 Cr.P.C. The arguments on charges were
heard and charge for offence U/S 33 Delhi Excise Act was framed against accused
Bimla Devi on 03.12.2024. The accused pleaded not guilty and claimed trial.
Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined three
prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. were conducted wherein accused admitted the
factum of registration of FIR no. 772/2022 alongwith certificate u/s 65 B IEA as Ex.
A1 (colly), Excise report as Ex. A2 and RC No. 23/21/23 as Ex. A3, pursuant to the
admission made by accused of these documents, witnesses at Sr. No. 3 and 5 were
dropped from the list of witnesses.
5. Ld. APP for the State has argued that prosecution witnesses have supported the
prosecution case and their testimony has remained unrebutted. It has been further
argued that on the combined reading of the testimony of all the prosecution witnesses,
offence U/S 33 of Delhi Excise Act has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused has stated that there is no legally
sustainable evidence against the accused and that the accused has been falsely
implicated by the police officials and even recovery of illicit liquor has not been
proved from the possession of accused as no public witnesses were joined by the
police officials during investigation and recovery proceedings. It is further argued that
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due to the lacunae and incoherency in the story of the prosecution, the accused be
given the benefit of doubt and are therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let
us discuss the testimonies of the material prosecution witnesses in brief.
8. PW-2 HC Mukesh Kumar No. 1339/SW, PS Dabri, New Delhi is the
complainant in this case and he deposed that on 20.11.2022 he was posted as HC at PS
Palam Village. On that day, he was on patrolling duty on beat No. 10 Mahavir Enclave
and at around 8:00 PM while patrolling when he reached near Pakora Park, Nasir Pur
Road, Mahavir Enclave, he saw one lady was coming from the side of Neha Green
Garden having one white plastic katta on her shoulder who on seeing him turned and
started walking fast. Thus, on suspicion, he shouted to stop to her and she stopped and
when he inquired from her about the contents of the katta she did not give any
satisfactory answer. Thereafter, he told her to get down the White Katta from her
shoulder and when he checked the same, it was found containing Masaledar Desi
Sharab for sale in Haryana Only. During interrogation she revealed her name as Bimla
Devi. Thereafter, he shared the said information with the DO Concerned through
Mobile and IO HC Chet Ram along with W/HC Monika reached at the spot and he
handed over the recovered case property as well as the accused to the IO. Thereafter,
IO recorded his statement Ex. PW2/A. IO also requested 3-4 public persons to join the
investigation, however, they refused and left from there without telling their names and
addresses. Thereafter, IO took out the illicit liquor from the plastic katta and upon
checking it was found containing 96 quarter bottles of Masaledar Desi Sharab Santra
Raseela for sale in Haryana only was written on each bottle. IO took out one quarter
bottle as sample and put the remaining 95 quarter bottles in the said plastic katta and
tied the same with white cloth and sealed with the seal of CR and it was given Mark as
S1. The sample bottle was also tied with white cloth and sealed with the seal of CR
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and it was given as mark as Al. IO filled Form M29 in his presence. Thereafter, IO
seized the case property vide seizure memo Ex. PWI/A. The seal after use was handed
over to him. Thereafter, IO prepared tehrir and handed over the same to him and he got
the present case FIR registered and came back at the spot with the copy of FIR and
rukka and handed over the same to IO. Thereafter, IO prepared the site plan at his
instance i.e. Ex. PW2/B. IO prepared the interrogation report of accused Bimla Ex.
PWI/C, served notice U/s 41 A Cr.P.C Ex. PW1/B and bound down the accused Bimla
and released her upon furnishing of pabandinama Ex. PW2/C. Thereafter, he along
with W/HC Monika and IO with case property, came back to the PS and handed over
the case property to the MHCM. During investigation, IO also recorded his statement
U/s 161 Cr.P.C. The accused was correctly identified by witness in the court. He can
identify the case property, if shown to him. The case property has already been
destroyed vide destruction order dated 26.09.2022 i.e. already marked as Mark A
(Colly). The identity of case property is also not disputed by Ld. Defence counsel.
9. PW-3 ASI Chet Ram, No. 117/SW, PS Palam Village, New Delhi is the IO of
this case. He deposed that on 20.11.2022, he was posted as HC at PS Palam Village.
On that day, he received DD No.128 A and after receiving the same, he along with
W/HC Monika went to the spot i.e. Pakora Park, Nasir Pur Road, Mahavir Enclave,
New Delhi where they met with HC Mukesh who handed over the custody of accused
along with the recovered case property to him. During interrogation, accused revealed
her name as Bimla Devi. He also asked 4-5 public persons to join the investigation,
however, none agreed and left from there without tell their name and addresses.
Thereafter, he recorded statement of HC Mukesh i.e. Ex. PW2/A and he attested the
same bearing his signatures at point B. He checked the katta and counted the illicit
liquor which was found containing 96 quarter bottles of Santra Raseela Masaledar
Desi Sharab for sale in Haryana only. One quarter bottle was taken out as sample and
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and it’s mouth was tied with the white cloth and was sealed with the seal of CR and
marked with Sr. No. Al. The remaining 95 quarter bottles were kept in the said white
katta and the mouth of the same was tied with white cloth and was sealed with seal of
CR. The seal after use was handed over to HC Mukesh. Thereafter, he prepared form
M 29 at the spot i.e. Ex. PW3/A and seized the case property and prepared the seizure
memo of the case property vide memo Ex. PW1/A. Thereafter, he prepared Tehrir
rukka Ex. PW3/B and handed over the rukka to HC Mukesh and he went to the PS and
got the present case FIR registered and came back at the spot along with copy of FIR
and handed over the same to him. Thereafter, he prepared site plan i.e. Ex. PW2/B and
he also served U/s 41 A Cr.P.C upon the accused i.e. Ex. PW1/B and released her on
furnishing of pabandinama Ex. PW2/C, also recorded her disclosure statement Ex.
PWI/C. Thereafter, he alongwith HC Mukesh Kumar and W/HC Monika came back
to the PS and submitted the case property to the MHCM. During investigation he also
recorded statement of witnesses U/s 161 Cr.P.C. During investigation he sent the
seized sample to the Excise Lab through HC Babu Lal vide RC NO. 23/21/23 ie. Ex.
A3 and also obtained Excise result i.e. Ex. A2. After the completion of the
investigation, he filed the chargesheet before the court. Accused was correctly
identified by witness in the court. MHCM produced the Destruction Order dated
26.09.2022 is placed on record i.e. Mark A (Colly), vide which the case property of
the present case has already been destroyed. The identity of case property is not
disputed by Ld. Defence Counsel.
10. PW-1 W/HC Monika, PS Palam Village has also deposed on the same line as
that of PW-3 ASI Chet Ram being accompanying him on the day of alleged incident.
Thus, her testimony is not being reproduced to avoid repetition. Thereafter, after
conclusion of prosecution evidence, the matter was listed for recording of statement of
accused.
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STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
11. Statement of the accused Bimla Devi under Section 281/313 Cr.P.C. was recorded
separately on 07.08.2025 in which all the incriminating circumstances appearing in
evidence were put to her. The accused controverted and denied the allegations levelled
against her and stated that she has been falsely implicated in the case. Accused further
opted to not lead evidence in her defence.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
12. I have bestowed my thoughtful consideration to the rival submissions made by
both the parties. In the present case, the accused has been indicted for the offence U/S
33 of Delhi Excise Act. In order to prove the liability of accused under Section 33 of
the Delhi Excise Act, the prosecution must establish the fulfillment of all the essential
ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are
reproduced as follows:
“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 license, 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 which may extend to one lakh rupees.”
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i). Doubtful seziure memo and form M-29.
13. A careful reading of the testimony of PW-1, 2 and 3 reflects that even before the
Rukka was prepared, the case property i.e. illicit liquor was seized vide Seizure memo
Ex. PW-1/A and then, Rukka was prepared and thereafter, upon registration of FIR,
PW-3 ASI Chet Ram prepared the spot map and conducted further investigation. The
narration of such a chronology of events leads to the irresistible conclusion that the
seizure memo of the liquor was prepared, prior to registration of the FIR. Accordingly,
it follows that the number of the FIR could not have been mentioned on the seizure
memo as the same was prepared prior to registration of FIR, however, quite
surprisingly, perusal of the seizure memo reflects the mentioning of the full particulars
of the FIR thereupon, which fact has remained unexplained on behalf of the
prosecution and no explanation from the prosecution is forthcoming as to how the FIR
number surfaced on the document which was prepared prior to the registration of the
FIR. This fact casts a fatal doubt upon the case of prosecution.
14. At this stage, reference may be made to the decision of the Hon’ble High Court
of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was
observed in paragraph 5 as follows:
“…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, PW 11/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. 36 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 whereasFIR No. 772/2022
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8the 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 my mind, about the genuineness of the weapon of offence
alleged to have been recovered from the accused…”
15. The aforesaid ruling of the Hon’ble High Court of Delhi squarely applies to the
facts in the present case as well, which leads to only one of the either inference, that is,
either the FIR was registered prior to the alleged recovery of the illicit liquor, or that
the said document was prepared later in point of time. In either of the scenarios, a dent
is created in the version of the prosecution, the benefit of which must accrue to the
accused.
16. Since in the present case, all the witnesses are police personnel and the
necessary safeguards in the investigation have not been followed by the IO, I am of
the view that the possibility of false implication of the accused persons under the
provisions of Excise Act cannot be ruled out at the instance of the police.
ii). The non-joining of any independent / public witness.
17. It is evident from the record that no public witness to the recovery of the liquor
has been either cited in the list of prosecution witnesses or has been examined by the
prosecution. Apparently, PW-3 ASI Chet Ram has deposed during his cross
examination that public persons were present on the spot however, he did not record
statement of any public persons. As apparent from record, no notice was served to
such public persons. Thus, it is not the case of prosecution that public witnesses were
not available at the spot. However, from a perusal of the record, no serious effort for
joining public witnesses appears to have been made by the investigating officer. These
facts are squarely covered by the ruling of the Hon’ble High Court of Delhi in the case
titled as, Anoop Joshi v State 1992 (2) C.C. Cases 314 (HC), wherein it was observed
as under:
FIR No. 772/2022
St. Vs. Bimla Devi
9“…18. It is repeatedly laid down by this Court in such cases it should be
shown by the police that sincere efforts have been made to join
independent witnesses. In the present case, it is evidence that no such
sincere efforts have been made, particularly when we find that shops
were open and one or two shopkeepers could have been persuaded to
join the raiding party to witness the recovery being made from the
appellant. In case any of the shopkeepers had declined to join the raiding
party, the police could have later on taken legal action against such
shopkeepers because they could not have escaped the rigours of law
while declining to perform their legal duty to assist the police in
investigation as a citizen, which is an offence under the IPC…”
18. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999
(1) C.L.R. 69, Hon’ble Punjab & Haryana High Court held as under:
“…The recovery of illicit liquor was effected from the possession of the
petitioner during noon time and it is in the evidence of the prosecution
witnesses that some witnesses from the public were available and they
were asked to join the investigation. The explanation furnished by the
prosecution is that the independent witnesses were asked to join the
investigation but they refused to do so on the ground that their joining
will result into enmity between them and the petitioner…”
19. It is well settled principle of the law that the investigating agency should join
independent witnesses at the time of recovery of contraband articles, if they are
available and their failure to do so in such a situation casts a shadow of doubt on the
prosecution case. In the present case also as stated by PWs, admittedly the
independent witnesses were available at the time of recovery but they did not join the
investigation. This explanation does not inspire confidence because the police officials
who are the only witnesses examined in the case have not given the names and
addresses of the persons contacted to join. It is a very common excuse that the
witnesses from the public refused to join the investigation. A police officer conducting
investigation of a crime is entitled to ask anybody to join the investigation and on
refusal by a person from the public the Investigating Officer can take action against
FIR No. 772/2022
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such a person under the law. Had it been a fact that the witnesses from the public had
refused to join the investigation, the IO must have proceeded against them under the
relevant provision of law. The failure to do so by the police officer is suggestive of the
fact that the explanation for non-joining the witnesses from the public is an after-
thought and is not worthy of credence. All these facts taken together make the
prosecution case highly doubtful.
20. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the
aforesaid finding, by providing that whenever any search is made, two or more
independent and respectable inhabitants of the locality are required to be made
witnesses to such search, and the search is to be made in their presence. Under Section
100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable
for criminal prosecution. Despite the availability of such a provision, no sincere
attempts were made by the police to join witnesses in the present case. Therefore, non-
compliance of the mandatory provisions of law, even though public witnesses were
easily available in the vicinity, makes the prosecution version highly doubtful.
21. This Court is conscious of the legal position that non-joining of independent
witnesses cannot be the sole ground to discard or doubt the prosecution case, as has
been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However,
evidence in every case is to be shifted through in light of the varied facts and
circumstances of each individual case. As discussed above and hereinafter, the
testimony of the police witnesses in the present case is not worthy of credit. In such a
situation, evidence of an independent witness would have rendered the much-needed
corroborative value, to the otherwise uncompelling case of the prosecution.
iii). Possibility of misuse of seal of the investigating officer.
22. As per the prosecution story, after preparing seizure of the case property and
the samples of illicit liquor with seal of ‘CR’, the aforesaid seal was handed over to
PW-2 HC Mukesh Kumar. This fact cannot be ignored that PW-2 HC Mukesh Kumar
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was a recovery witness and had apprehended the accused and was subsequently, a part
of the investigation in the present case. Thus, the seal was not handed over to any
independent witness. There is nothing on record to suggest that PW-3 HC Chet Ram
had made efforts to handover the seal to any independent witness. Further, no taking
over memo is on record to show the genuineness of fact of actual taking over of seal by
PW-2 HC Mukesh Kumar from PW-3 HC Chet Ram. In such a factual backdrop, since
the seal was given to PW-2 HC Mukesh Kumar, the seal remained with the police
officials of the same police station and therefore, the possibility of tampering with the
case property cannot be ruled out. Moreover, it is not even the case of the prosecution
that the seal was not within the reach of the IO and thus, there was no scope of
tampering of case property.
23. In this regard, judgment in case titled as Ramji Singh v State of Haryana 2007
(3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph
7 that:
“…The very purpose of giving seal to an independent person is to avoid
tampering of the case property. It is well settled that till the case
property is not dispatched to the forensic science laboratory, the seal
should not be available to the prosecuting agency and in the absence of
such a safeguard the possibility of seal, contraband and the samples
being tampered with cannot be ruled out. In the present case, the seal of
Investigating Officer-Hoshiar Singh bearing impression HS was available
with Maha Singh, a junior police official and that of Deputy
Superintendent of Police remained with Deputy Superintendent of Police
himself. Therefore, the possibility of tampering with seals as well as
seized contraband and samples cannot be ruled out…”
24. Similarly, Hon’ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT
193, had 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
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12tempered with. The prosecution could have proved from the CFSL form
itself and from the road certificate as to what articles were taken from the
Malkahana. Once a doubt is created in the preservation of the sample
the benefit of the same should go to the accused…”
25. It is nowhere the case of the prosecution that the seal after use was handed over
to any of the independent witness. In view of discussion made above, the conclusion
which can be arrived that the seal remained with the Investigating Officer or with the
other member of the raiding party therefore the possibility of interference or
tempering of the seal and the contents of the parcel cannot be ruled out. Thus, in light
of the aforesaid discussion, the possibility of misuse of seal and tampering of case
property cannot be ruled out.
iv). Other infirmities in the prosecution case.
26. In the present case, all the witnesses are police official and no efforts what so
ever have been made for associating public persons during the recovery proceedings.
Further, no efforts have been made to join any public witness and the place of recovery
was also near a public place thus, the witnesses must have been easily available and no
explanation has been given as to why no efforts were made for joining public
witnesses during investigation.
27. In view of the discussion made above, it is clear that the prosecution has
miserably failed to prove the allegations leveled against the accused, more specifically,
the recovery of the alleged illicit liquor is not proved beyond reasonable doubt.
Therefore, this Court hereby accords the benefit of doubt to the accused person and
holds the accused Bimla Devi not guilty of commission of the offence in question.
Accused Bimla Devi is thus, acquitted of the offence U/S 33 of Delhi Excise Act.
28. The bail bonds, if any furnished persons at the time of commencement of trail
stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned
to its rightful owner as per rules. Endorsement, if any stands canceled. Case property
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if any, shall be disposed of after expiration of period to assail this judgment and in
case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to
record room after due compliance. Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.08.23
16:37:03 +0530
Announced in the open court on (Saurabh Goyal)
this day i.e. 23rd August, 2025 JMFC-01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 13 pages and each page bears my
Digitally signed
signatures. SAURABH by SAURABH
GOYAL
GOYAL Date: 2025.08.23
16:37:06 +0530
(Saurabh Goyal)
JMFC-01 South West District, Dwarka,
New Delhi
FIR No. 772/2022
St. Vs. Bimla Devi