Delhi District Court
State vs Joma Devi on 25 January, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS -07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Visvesh, DJS
Cr. Case No. -: 202495/2024
Unique Case ID No. -: DLSW022180522024
FIR No. -: 04/2024
Police Station -: BHD Nagar
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
JOMA DEVI
W/o Late. Shanker,
R/o H.no. 433, Naveen Place Ext.
Najafgarh, New Delhi. .... Accused
1.
Name of Complainant : HC Ravi
2. Name of Accused : Joma Devi
Offence complained of or
3. : 33 Delhi Excise Act.2009
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 04.01.2024
offence
6. Date of Filing of case : 20.08.2024
7. Date of Reserving Order : 04.01.2025
8. Date of Pronouncement : 25.01.2025
9. Final Order : Acquitted
Argued by -: Sh. Vishvjeet Yadav, Ld. APP for the State.
Sh. Sunil Kumar, Ld. counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION
FACTUAL MATRIX –
Cr. Case No. 202495/2024 State vs. Joma Devi Page 1 of 8
1. Pithily put, the case as per prosecution is that on 04.01.2024 at about
12.15 PM at H.no. 433, Naveen Place Ext. within the jurisdiction of
PS BHD Nagar, the Accused was found in possession of 38 nips
(180 ml each) of Motta Masaledar Desi Sharab for sale in Haryana
only without having valid license or permit for the same, in
contravention of provisions of Delhi Excise Act, 2009, and thereby
committed offence punishable u/s 33 of Delhi Excise Act, 2009.
2. After completion of investigation, charge-sheet was filed. Upon
taking cognizance of the offence, accused was summoned and
supplied with copy of charge-sheet in compliance of section 207 of
Cr.P.C. Charge u/S 33 of Delhi Excise Act, 2009 was framed against
her on 30.08.2024, to which accused pleaded not guilty, and claimed
trial. Proceedings accordingly progressed to the stage of PE.
3. In order to prove its case, the prosecution examined HC Ravi as PW-
1, HC Nahar Singh as PW-2 and HC Yogit as PW-3. Vide statement
of accused recorded U/s 294 Cr.P.C, she admitted the genuineness
of FIR No. 4/2024 BHD Nagar, certificate under Section 65B of
Indian Evidence Act, DD Entries, report of chemical examiner, road
certificate and Register no. 19 & 21 relevant entries. As such, rest
of the formal witnesses were dropped from the list of witnesses to
be examined. PE was closed thereafter.
4. Then, in order to accord an opportunity to the accused to explain all
the incriminating circumstances appearing against her at trial,
statement of accused u/S 313 r/w 281 Cr.P.C was recorded wherein
accused stated in her defence that she is innocent and nothing has
been recovered from her possession. She opted not to lead DE in the
affirmative.
Cr. Case No. 202495/2024 State vs. Joma Devi Page 2 of 8
5. Proceedings then progressed to the stage of final arguments. Final
arguments heard. Record perused. Considered.
FINDINGS
6. It is seen that recovery was made from a residential area,
presumably crowded, but IO has not made any public person /
neighbours as a witness of the recovery of the alleged liquor.
Prosecution witnesses have deposed that there were public
witnesses around the spot, but they were not joined to the
investigation. They testified that PW2/IO had asked the public
persons to join the investigation, but they refused to so comply.
PW2/IO admitted that he had not taken any action against such
public persons who did not tender help to a public servant despite
them being under an obligation to render help on the legitimate
request of the public servant. In these circumstances, if public
persons would have refused to assist the members of police party,
he could have served the said public witnesses with a notice in
writing to join police proceedings . But not to be. In the case of
“Anoop Joshi Vs. State” 1992 (2) C.C. Cases 314 (HC) as well,
Hon’ble High Court of Delhi had observed as under:-
“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 evident that no such
sincere efforts have been made, particularly when we find that shops were
open and one or two shop-keepers 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“.
7. Further in Sadhu Singh versus State of Punjab, (1997) 3 Crimes
55 (PH) it was held that:
Cr. Case No. 202495/2024 State vs. Joma Devi Page 3 of 8
“there can be cases when public witnesses are reluctant to join or are not
available. All the same, the prosecution must show a genius attempt
having been made to join public witnesses. It is further held that a
stereotype statement of non availability of any public witness will not be
sufficientparticularly when at the relevant time, it was not difficult to
procure the services of public witness.”
8. Since the IO failed to take any such steps, it creates a doubt in the
veracity of case of prosecution.
9. It is also noticed that no efforts whatsoever have been made by the
prosecution to dig out any clue about the source of illicit liquor
seized, as having been arranged for by the accused. Lack of such
efforts can be either because IO conducted a shoddy investigation,
or a hasty investigation, but in either case, as a necessary corollary,
the benefit should go to the accused.
10. The case property was produced before the court in a sealed
Katta (sack) bearing the seal of ‘NS’. But the said bottles of
illicit liquor were not bearing any specific marks to show that
the said case property was recovered from the possession of
the accused on the date of incident. The particulars of the case
property mentioned on the katta can easily be written at any
point of time and possibility of tampering can not be ruled out,
in view of the fact that seal with which katta was sealed
remained in possession of police officials posted in the same
police station.
11. Recovery of alleged liquor from accused is further fraught
with doubt in view of the fact that the seal with which the
sample property was sealed was not handed over to any
independent person, and remained in possession of police
officials of the same PS. As such, possibility of tampering with
seal on the same cannot be ruled out.
Cr. Case No. 202495/2024 State vs. Joma Devi Page 4 of 8
12. Arguendo, even if it is conceded that case property is not having
specific mark, the case of prosecution is still bound to fail. It is seen
that the illicit liquor samples were seized on 04.01.2024, but not
were sent over for examination on 28.03.2024, with a delay of about
two months. During the period intervening therein, such samples
were kept by the police officials at the police station itself, before
being dispatched for evaluation and the seal with which case
property was sealed also remained in possession of such police
officials. None of the witnesses examined by the prosecution have
stated that the samples of illicit liquor taken for examination from
the time they were taken and till the time the said samples were
handed over to the Public Analyst, the samples were not tampered
with. In this regard, Hon’ble Delhi High Court has held in Datu Ram
v. State (Delhi) : 1996(1) Crimes 604 : 1996(36) DRJ 527 : 1997(1)
CCR 18 as follows :
“1.In the State of Rajasthan v. Daulat Ram, 1980, C.C. Cases 83 (S.C),
the Supreme Court observed that the prosecution has to prove all the links
starting from the seizure of the samples till the same reached the hands of
the Public Analyst so that the court could conclude that the seals
remained intact throughout. Unfortunately, this warning seems to have
fallen on deaf ears at least as far as this case is concerned.
3.Does the evidence as noticed above satisfy the requirement highlighted
by the Supreme Court in Daulat Ram‘s case? The answer, to my mind, has
necessarily to be in the negative.
4.The parcels were allegedly sealed at the spot by the Investigating
Officer and if the Moharer Malkhana is to be believed the same were
deposited with him by the said officer. However, the Investigating Officer
no where says so. In any case, even if it be taken that the parcels were
actually deposited by him, was it not for him to assure the Court that so
long as they had remained in his possession they had not been tampered
with? This, however, is riot the end of the matter. The Investigating
Officer nowhere says that he had filled the C.F.S.L. form nor is there
anything, either in his statement or in the statement of the Moharer
Malkhana or even in the entry made in the Register, that any such form
was ever deposited. The Constable who took the sample parcel also no
where speaks of his having deposited any such form with the C.F.S.L.
There are judgments of this court in which it has been held that absence
of such evidence would be fatal to the prosecution. Reference, in this
connection may be made to Chameli Devi v. State, 1993 JCC 293, MoolCr. Case No. 202495/2024 State vs. Joma Devi Page 5 of 8
Chand vs. State, 1993 (2) Delhi Lawyer 14, Anoop Joshi v. State, 1992
(2) CC Cases 314, Jagdish Prasad v. State, 55(1994) DLT 315
and Munni Lal v. The State, 1994 IV AD (Delhi) 1099.
5.Last, but not the least, the report of the C.F.S.L. itself, the relevant
portion of which has already been reproduced above, cannot be
considered to be such as to inspire the confidence of the Court with regard
to the seals on the sample parcel. As would be apparent though it does
show that the parcel received was having ” the seal impression as per
specimen enclosed intact” we are not told as to what was the “specimen
enclosed”. This further takes away the sting from the prosecution version.
13. In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC
52 as well, it has been held that in the absence of any link evidence
that the property was deposited in the malkhana intact, accused is
entitled to benefit of doubt.
14. In Chandra Wati v. State (Delhi) : 1991(44) DLT 31 : 1991
JCC 508 it was also held by Hon’ble Delhi High Court that the
prosecution has to bring on record the link evidence to show
that the sample of the recovery alleged to have been made by
the police witness from the accused was analysed in the CFSL
without it being tampered with by any one, failure of which is
a ground in favour of the accused.
15. Perusal of record shows that the Excise Result was obtained qua
samples of the case property seized only, and as per the same, the
presence of alcohol/country made liquor in the said sample bottles
stands confirmed. The presence of alcohol in the remaining
allegedly recovered liquor bottles has not been thus, proved by the
prosecution. It is not the case of IO that contents of all liquor bottles
were mixed, and a representative sample therefrom was drawn.
Now, since the State has only found one bottle (180 ml. of liquid),
allegedly recovered from the accused, containing alcohol, an
offence under section 33 of the Delhi Excise Act, 2009 cannot be
said to have been made out as the same falls within the maximum
Cr. Case No. 202495/2024 State vs. Joma Devi Page 6 of 8
permissible limit specified under Rule 20 of the Delhi Excise Rules,
2010. At this juncture, the ruling of the Hon’ble High Court of
Karnataka, in its judgment titled as Nagesh S/O Ningaiah vs The
State Of Karnataka, Criminal Revision Petition No.772/2009,
decided on 31 January, 2014, maybe adverted to, wherein, while
acquitting the accused of a similar offence, following observations
were made:
“It is seen from the mahazar that out of 49,440 Whisky bottles, 15
Whisky bottles of 180 ml. each were sent for Chemical Analysis,
and it is opined that there was presence of Ethyl Alcohol in all the
bottles that were sent for Chemical Examination, fit for
consumption. Thus, the total quantity sent for Chemical Analysis
is less than permitted quantity under law. We do not know the
contents of the other bottles seized under a Panchanama. There is
no evidence to show that all other bottles also contained alcohol.
When the quantity found in the bottle sent for Chemical
Examination is less than permitted limit and when there is no
evidence regarding the contents of all other bottles seized under
Panchanama, it cannot be said that the accused was in possession
of the illicit liquor without pass or permit more than permitted
quantity so as to constitute an offence. The unreported decision of
this Court in W.P.No.17991/2011 (Excise), dated 28.02.2012,
relied upon by the learned counsel for the petitioner is rightly
applicable to the facts of this case………In this case also the
prosecution has failed to establish that the accused was in
possession of liquor more than permitted quantity.”
16. The prosecution has also not been able to explain as to how the FIR
number surfaces on the seizure memo, M29 Form, ie documents
which were purportedly prepared prior to registration of subject
FIR. An inference can be drawn from this circumstance that the FIR
is false, and the documents were created with a view to falsely
implicate the accused.
Reliance at this juncture can be placed on the judgment titled Mohd
Hashim vs State 82(1999) DLT 375, wherein it has been held as
follows,
“…Surprisingly, the secret information (Ex. P.W. 7/A) received by the
Sub-Inspector Narender Kumar Tyagi (P.W. 7), the notice under S. 50 of
Cr. Case No. 202495/2024 State vs. Joma Devi Page 7 of 8
the Act (Ex. P.W. 5/A) alleged to have been served on the appellant, the
seizure memo (Ex. P.W. 1/A) and the report submitted under S. 57 of the
Act (Ex. P.W. 7/D) bear the number of the FIR (Ex. P.W. 4/B). The number
of the FIR (Ex. P.W. 4/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 circumstances number of the
FIR (Ex. P.W. 4/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. P.W. 4/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 prosecution version and creates
a good deal of doubt about recovery of the contraband in the manner
alleged by the prosecution.”
17. The fact that the IO or any other recovery witness did not take
any photographs of the case property at the time of recovery,
despite easy availability of camera-phones, further casts a
shadow of doubt on the case of prosecution.
18. In the facts and circumstances of the case discussed as herein above,
this court is of the opinion that prosecution has not been able to
establish its case beyond reasonable doubt against the accused. As
such therefore, the accused Joma Devi W/o Late Shankar deserves
benefit of doubt. Accordingly, he stands acquitted of the offence
punishable under Section 33 of the Delhi Excise Act, 2009.
19. File be consigned to record room after due compliance with Section
437A CrPC.
Digitally signed by VISVESH
Date: 2025.01.25 12:01:51+05’30’
(VISVESH)
Judicial Magistrate First Class- 07
South-West District, Dwarka Courts,
New Delhi, 25.01.2025.
Cr. Case No. 202495/2024 State vs. Joma Devi Page 8 of 8