Delhi District Court
State vs Komal on 13 May, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
Cr. C. No. 5008/2023
FIR No. 176/2021
PS:Karawal Nagar
State vs. Komal
JUDGMENT
a) ID. No. of the case : 5008/2023
b) CNR No. DLNE-02-011502-2023
c) Date of Commission : 23.04.2021
of offence
d) Name of the Complainant/ : Ct. Chetan
Informant.
e) Name of the Accused, his : Komal, W/o Sh. Ajay, R/o H.
parentage and address No. 34, Gali No.1, Panchal
Vihar, Karawal Nagar, Delhi.
f) Offences complained of : U/s 33 of Delhi Excise Act
g) Plea of the Accused : Pleaded not guilty
h) Final Order : Acquitted
i) Date of such order : 13.05.2025
j) Date of institution : 23.11.2023
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.05.13
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FIR No. 176/2021 1 of 14 State Vs. Komal
Brief Facts of the Case
1. The accused is brought to face trial under Section 33 Delhi Excise Act
(hereinafter referred as “the Act”). It is the case of the prosecution in succinct that on
23.04.2021 at 7.00 PM at in front of House No. 34, Gali No.1, Panchal Vihar,
Karawal Nagar, Delhi one lady Komal (hereinafter referred to as ‘the accused’) was
found in possession of 54 quarter bottles of illicit liquor as mentioned in seizure
memo without any licence or permit as required by Delhi Excise Act. Thereafter, the
present FIR was registered u/s 33 of the Act.
Court Proceedings
2. After investigation, charge-sheet was filed and accused person was summoned.
Mandate of Section 207 Cr.PC was complied with and charge was framed against the
accused u/s 33 of the Act on 12.02.2024. The accused had pleaded not guilty and
claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined
following witnesses.
Prosecution Witnesses
S. No. Witness number Name of the witness
1. PW1 Ct. Chetan
2. PW2 W/Ct. Pritam
3. PW3 ASI Junaid
4. PW4 SI Vishal Tyagi
5. PW5 ASI Hakim Khan
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
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Documents relied upon by the prosecution
S. No. Ex./Mark Nature of documents
1. Ex. PW1/A Seizure memo
2. Ex.PW-1/B Tehrir
3. Mark-A Copy of Road certificate
4. Ex.PW-4/A Pabandinama
5. Ex.PW-4/B Form M-29
Statement of the Accused u/s 313 Cr.P.C
4. Statement of accused was recorded u/s 313 Cr.P.C on 24.04.2025. The accused
stated that she is innocent. No recovery was effected from him and same has been
planted upon her. The police had called her to the PS and falsely implicated in the
present case. She did not know anything about the present case.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting her an
opportunity.
Final Arguments
6. During the course of final arguments, it has been argued by Ld. APP for the
State that prosecution has proved its case beyond reasonable doubt and all the
ingredients of relevant Section are complete and in view of the presumption under
Section 52 of the Act the accused be convicted of the present offence.
7. On the other hand, the Ld. Defence Counsel argued that the accused has been
falsely implicated in the present case, that there is no public witness of the incident
and that the recovery is planted upon the person of the accused as no recovery was Digitally
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ever effected from her. He also pointed out to the contradictions in the testimony of
the witnesses. According to him, the prosecution miserably failed to prove its case
against the accused beyond reasonable doubt.
Statement of accused u/s 294 Cr.P.C
8. The accused had admitted the DD No. 76A dated 23.04.2021 which is Ex.P1,
FIR No.176/2021, PS Karawal Nagar which is Ex.P2, Certificate under section 65B
Indian Evidence Act,1872 which is Ex.P3 and Report of Chemical Examiner which is
Ex.P4 respectively under Section 294, Cr.PC and hence the examination of the
witnesses were dispensed with. This is the entire evidence in this matter.
Brief reasons for the just decision of the case
9. It is a settled proposition of law that in a criminal trial, it is for the State to
prove its case beyond all reasonable doubts by leading reliable, cogent and convincing
evidence and it is for the prosecution to ensure that its case is able to stand on its own
legs. The prosecution cannot derive any benefit whatsoever from the weakness of the
defence of the accused if any. Accused is entitled to the benefit of every reasonable
doubt in the prosecution version.
10. PW1 deposed in his examination in chief that on 23.04.2021 he was posted at
PS Karawal Nagar as Ct. On that day he was on beat patrolling duty. At around 06:45
PM, when he reached Panchal Vihar Pulia, Karawal Nagar one secret informer met him
and told that one lady is selling illicit liquor in H. No. 34, Gali no. 1, Panchal Vihar,
Karawal Nagar, Delhi and if raid be conducted she can be apprehended. He conveyed
the information to the SHO. Thereafter, the concerned SHO ordered him to take legal
action against the said lady. Thereafter, he along with secret informer reached at
aforesaid spot where they found one lady in possession of one white plastic bag of
“Safal Matar”. Thereafter secret informer went there. On watching him, the said lady
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tried to escape from there after lifting the said plastic bag. However, he apprehended the
said lady. Upon checking, the said plastic bag illicit liquor were found. Thereafter he
interrogated the said lady who revealed her name as Komal. Thereafter, IO PSI Vishal
Tyagi along with W/Ct. Pritam came to the spot. In the meantime he handed over the
said lady as well as illicit liquor to IO. Thereafter IO took out one quarter bottle from the
said bag for sample and the remained case property were seized sealed with the seal of
‘VT’ vide memo is Ex. PW-1/A. Thereafter IO prepared tehrir upon his statement which
is Ex. PW-1/B and handed over the same to him for registration of FIR.
11. In the cross-examination he testified that he testified that he did not remember
whether he had made any departure entry when he left the PS for beat patrolling duty.
He was on his bike during beat patrolling duty but he did not remember the
registration number and model number of the same. IO did not take his call details.
He further testified that IO came at the spot at about 07:00 PM along with W/Ct.
Pritam but he did not remember the mode of transportation. IO requested to 4-5
public persons to join the investigation however no one become ready to join the
same. Further, IO had tried to served the notice upon the public persons to join the
investigation however they refused the same. Firstly IO prepared tehrir then seized
case property and the case property to seized prior the registration of FIR. He did not
remember whether the W/Constable had signed on the seizure memo or not. The site
plan was prepared after registration of FIR however he and W/Ct. Pritam signed the
same. He further testified that seal was handed-over to him after its use and the same
was handed-over to MHC(M) after reaching at the PS within one hour. No seal
handling memo was prepared by IO or MHC(M). Finally they left the spot at about
08:00 PM, the case property was taken by to the PS and the same was submitted in
PS Malkhana at about 08:15 PM. He further testified that he did not remember the
time on which he returned back to the spot after registration FIR.
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12. PW2 deposed in his examination in chief that on 23.04.2021 he was posted as
Women Constable at PS K. Nagar. On that day she alongwith IO went to H. No. 34,
Gali no. 1, Panchal Vihar, Karawal Nagar, Delhi where they met with Ct. Chetan who
apprehended one lady namely Komal and he also handed over a white plastic bag
containing illicit liquor. Thereafter, IO taken out of all quarter bottles from said
plastic bag and counted the same and found 54 quarter bottles of illicit liquor with
label of “Desi Santra Sharab for sale in Haryana only 180 Ml each”. She further
deposed that IO took out one quarter bottle for sample and remaining quarter bottles
seized by IO vide seizure memo Ex. PW-1/A. In the cross-examination the PW2
testified that they reached at the spot at about 07:00 PM but she did not remember the
mode of transportation. Finally they left the spot at about 10:15 PM. The seal was
handed-over to Ct. Chetan but she did not remember whether IO prepared seal
handling memo. Further testified that she did not remember when IO handed-over the
seal to Ct. Chetan. Ct. Chetan went to PS after taking Rukka at about 08:00 PM and
returned back from there at about 08:45 PM. She further testified that only Ct. Chetan
had signed the seizure memo.
13. PW3 deposed that on 09.06.2021 he was posted as HC at PS K. Nagar. On that
day he received one sample bottle for taking it to Excise office Vikas Bhawan ITO
Delhi. He received the sample vide RC No. 809/21/21. The copy of RC is Mark A.
Thereafter, he reached at excise office and deposited the same. He received the
receipt of deposition of sample quarter bottle of illicit liquor and returned back to the
PS and handed over the receipt to MHC (CP). In the cross-examination he admitted
that no TA/DA and fair charges demanded by him for deposit sample.
14. PW4 deposed on the same lines as PW1. In addition to that he deposed that he
prepared tehrir Ex.PW-1/B and handed over the same to Ct. Chetan for registration of
Digitally
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FIR. After some time Ct.Chetan returned back to the spot and handed over to him the
copy of FIR and original tehrir. He took out one quarter bottle for sample and
remaining quarter bottles seized by him with the seal of “VT” vide seizure memo
Ex.PW-1/A. In the cross-examination he testified that he reached at the spot at about
7.15 pm along with W/Ct. Pritam by Govt. bike but he did not remember the
registration number of the same. He admitted that the place of occurrence was a
public place. He further testified that he requested four-five persons to join the
investigation but none was greed to join the same and no notice was served upon the
same due to paucity of time. He further testified that he did not remember the exact
time when he seized the case property and that no seal handling memo was prepared.
15. PW5 deposed in his examination in chief that he was the second IO of the
present case. He had not investigated in the present matter. He had only filed the
charge-sheet in the present case. In the cross-examination he testified that he has not
recorded the statement of any witness and nothing was recovered from the accused in
his presence.
16. The allegations against the accused is that she was found in possession of illicit
liquor bottles. The case of the prosecution is entirely based on the recovery allegedly
effected from the accused persons. The prosecution has relied heavily upon the
presumption under Section 52 of the Act. To contend that in the present case, the
burden was upon the accused to prove that he had not committed the offence under
Section 33 of the Act and since the accused had failed to discharge the onus cast upon
him, the accused should be found guilty in the presence case. However, perusal of the
Section 52 of the Act reveals that the presumption under the Section 52 can be raised
only after the prosecution has discharged its initial onus as to the accused having
been found in possession of illicit liquor. For the sake of convenience, Section 52 of
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the Act is reproduced herein under:
“52. Presumption as to commission 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.”.
17. Hence, to avail the benefit of the presumption, it was still for the prosecution to
prove that the illicit liquor was in fact recovered from the possession of the accused.
The recovery was effected by police witnesses. All of the witnesses including the
complainant are police witnesses. It is settled law, that when only police witnesses
have been examined, their evidence must be thoroughly scrutinized.
18. In present case, prosecution was duty bound to prove the possession of the
illicit liquor with accused. Same is sought to be proved by the recovery memo and
testimony of the witnesses. But the manner of conducting inquiry, seizure and search
etc. on the spot at the time of arrest of the accused and alleged recovery of liquor in
this case, makes the prosecution version highly doubtful. The incident is stated to
have happened at about 6.45 pm and it is evident that none of the prosecution
witnesses, could depose in their testimony that place of incident was not a public
place and there was no public witness at that place at the time of alleged seizure and
recovery of case property from the accused. Whereas perusal of site plan Ex. PW-1/C
reveals that place of seizure was a public place/ public road. Further, these witnesses
had failed to bring anything on record that they had tried to join independent public
witness during the entire search and seizure proceedings. Therefore, it is clear that no
efforts were made to join independent witnesses despite their availability which
causes a serious dent in the story of the prosecution and all these facts makes the
alleged recovery very doubtful. Digitally
signed by
ISRA ISRA
Date:
ZAIDI
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19. Regarding the importance of joining independent witness during investigation
in a case like the present one, reliance may be placed on Anoop Joshi v. State
1999(2) C.C. Cases 314 (HC), wherein, Hon’ble High Court of Delhi has observed as
under:
“18. It is repeatedly laid down by this court that 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
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“.
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon’ble Supreme
Court held as under:
“It therefore emerges that non-compliance of these provisions i.e., Sections
100 and 165 Cr.P.C. would amount to an irregularity and the effect of the
same on the main case depends upon the facts and circumstances of each
case. Of course, in such a situation, the court has to consider whether any
prejudice has been caused to the accused and also examine the evidence in
respect of search in the light of the fact that these provisions have not been
complied with and further consider whether the weight of evidence is in any
manner affected because of the non-compliance. It is well-settled that the
testimony of a witness is not to be doubted or discarded merely on the ground
that he happens to be an official but as a rule of caution and depending
upon the circumstances of the case, the courts look for independent
corroboration. This again depends on question whether the official has
deliberately failed to comply with these provisions or failure was due to lack
of time and opportunity to associate some independent witnesses with the
search and strictly comply with these provisions.” [Emphasis supplied]
20. Considering the aforesaid observations made by the higher Courts, the
omissions/failure on the part of investigating agency to join independent public
witnesses create reasonable doubt in the prosecution story and substantiates the
defence version that there is false implication of the accused in the present case and
that the recovery has been falsely planted upon the accused. Further, considering facts
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FIR No. 176/2021 9 of 14 State Vs. Komal
and circumstances of the present case in the light of ratio in State of Punjab v. Balbir
Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some
independent witnesses with the search and strictly comply with the provisions of
Code of Criminal Procedure. Hence, the above-mentioned facts create serious doubt
on the case of the prosecution.
21. Further, as per evidence on record, the seal after use was not given to any
independent public person. Even, no seal handing over memo is on record. IO
himself testified in his cross-examination that he did not prepare the same. Hence,
considering the legal position, the benefit of doubt should be given to the accused, as
tampering with case property in such a scenario cannot be ruled out. The reliance is
placed on the judgment of Ramji Singh v. State of Haryana 2007 (3) R.C.C.
(Criminal) 452, wherein it is held that-
“7. 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.”
Similarly, Hon’ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal)
622, held that –
“10. The seals after use were kept by the police officials themselves.
Therefore, the possibility of tampering 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 tampered
with. Once a doubt is created in the preservation of the sample the benefit of
the same should go to the accused.”
22. Further, 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
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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 made to on Rattan Lal v.
State 1987 (2) Crimes 29. No arrival or departure entries have been placed on record
to fortify the case of the prosecution by the IO. There is no independent witness to the
seizure memo.
23. For establishing the factum of recovery, the prosecution examined five
witnesses out of which none were public witnesses. The public witnesses were not
joined during the recovery of the alleged illicit liquor. The prosecution has failed to
examine any public witness therefore, the version of the prosecution has remained
uncorroborated by any independent material witness. The recovery witness examined
by the prosecution in the present case are police witnesses who are interested in the
success of the prosecution case and therefore, the probability of them being guided by
the extraneous factors, other than truth, cannot be ruled out. The police witnesses
cannot be straightaway termed as unreliable witnesses, however, when there is a
possibility of joining any public witness in the investigation and still no genuine
efforts are made to join the independent person as witness, then the testimony of the
police witness does not lend sufficient credence/reliability, unless it is corroborated
by independent material witness. In view of above discussion, it is duly established
that genuine efforts were not made by the IO of the case to join the public witness.
There is no independent witness to the seizure memo.
24. The non-joining of the public witness at the time of alleged recovery of the
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article creates doubt in the story of the prosecution as was held in Pawan Kumar v.
Delhi Administration (1987 CC 585) Delhi High Court. In these circumstances, as
despite the presence of public persons at/around the place of alleged recovery the
investigating officer failed to join independent public persons as witness to the
proceedings of the present matter, warrants an adverse inference to be drawn under
Section 114 (g) of the Evidence Act that the evidence if produced would have been
unfavourable to the case of the investigating agency/prosecution and thus, the
prosecution has failed to prove the recovery from the accused beyond reasonable
doubt. Reliance can be profitably placed on the judgment of Hon’ble SC of India in
case of Pradeep Narayan vs. State of Maharashtra (AIR 1995 SC 1930) held that
failure of police to join witness from locality during search creates doubt about
fairness of investigation, benefit of which has to go to the accused.
25. It is evident that no handing over memo of the seal was prepared. Therefore,
this court is of the considered opinion that link evidence concerning the seal
movement was missing in this present case, which fact by itself is sufficient to cast a
shadow a doubt on the authenticity of the prosecution case.
26. Further there is no independent witness to the sealing of the case property. The
liquor was with the possession of police officials only and the chances of tampering
with the seal cannot be ruled out. It was an imperative task for the police officials to
engage any public witness while sealing the case property. Further neither the IO nor
the witnesses had made any reflection regarding the handing over memo of the seal.
The seal was with in the possession of the police officials only and there is no clarity
as to when the seal was handed over and to whom it was handed over. Therefore, it
can be very well said that there are fair chances of tampering with the seal. Hence, it
can be very well said that prosecution has failed to establish its case beyond
Digitally
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ISRA ISRA
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reasonable doubt.
27. The evidentiary value of the spot map/sketch map prepared by the investigating
officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is
based on the actual observation of the officer at the crime scene, it is treated as direct
evidence and is admissible u/s 60 of Indian Evidence Act, 1872. The site plan was not
even prepared by the IO.
28. One another fact which this Court considers necessary to discuss here is that as
per the story of the prosecution 54 quarter bottles of illicit liquor were recovered. IO
had taken one quarter bottle from the entire lot as sample. Therefore, at this stage
prosecution has failed to establish beyond reasonable doubt that those remaining
quarters were containing the liquor as in absence of any sample that fact that other
quarters were containing illicit liquor remained unestablished. It was the bounden
duty of the police to take out the samples from each of the bottle. There are serious
lapses in the investigation conducted by the police which has made the story of
prosecution more doubtful.
29. It is an adage that law works on the wheels of evidence. Every criminal trial is
a journey of discovery and unfolding the truth. But in the present case no sufficient
evidence is there on record to warrant the conviction of the accused person. In the
case of Prem Singh Yadav Vs. CBI (178 (2011) DLT 529). It was held that where it
is possible to have both views one in favor of prosecution and one in favor of
accused, the later one should prevail. Prosecution could not prove beyond reasonable
doubt complicity of accused. In a criminal case the burden of proof is on the
prosecution to prove the case against the accused beyond reasonable doubt. The
burden never shifts. An accused enjoys the presumption of innocence. There is no
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duty on an accused person to purge himself of guilt. Where there is a lingering doubt,
the accused person is given the benefit of the doubt.
30. On perusal of the documents and consideration of submissions, it is the
considered opinion of the court that prosecution has not been able to prove the case
against the accused beyond reasonable doubt and the accused is entitled to be given
the benefit of doubt. Accused Komal is hereby acquitted for the offence i.e. section
33 of the Excise Act.
File be consigned to record room after due compliance.
Announced in the open Court today.
This judgment contains 14 pages and each page bears my signature.
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 17:01:39
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(Isra Zaidi)
JMFC-04/NE/KKD/Delhi
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