Delhi District Court
State vs Manju on 13 May, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
Cr. C. No. 1312/2019
FIR No. 227/2018
PS:Karawal Nagar
State vs. Manju
JUDGMENT
a) ID. No. of the case : 1312/2019
b) CNR No. DLNE-02-002331-2019
c) Date of Commission : 15.05.2018
of offence
d) Name of the Complainant/ : ASI Ashok Kumar
Informant.
e) Name of the Accused, his : Manju, W/o Sh. Ramesh, R/o
parentage and address H. No. 3E-273, Gali No.6,
West 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 : 24.05.2019
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 16:56:58
2025.05.13
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FIR No. 227/2018 1 of 15 State Vs. Manju
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
15.05.2018 at about 8.00 PM in front of liquor shop Shiv Vihar, Mahalaxmi Enclave,
Footpath, Karawal Nagar, Delhi one lady Manju (hereinafter referred to as ‘the
accused’) was found in possession of 11 quarter bottles of illicit liquor and 9 beer
bottles 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 07.12.2022. 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 ASI Ashok Kumar
2. PW2 HC Bijender Kumar
3. PW3 Retd. ASI Om Prakash
4. PW4 ASI Rihana
5. PW5 ASI Parmod
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.05.13
16:57:07
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FIR No. 227/2018 2 of 15 State Vs. Manju
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. Ex.PW-1/C Arrest memo
4. Ex.PW-1/D Personal search memo
5. Ex.PW-1/E Disclosure statement
6. Ex.PW-1/F Site plan
7. Ex.P1 Case property
8. Mark-A Copy of Register No.19
9. Mark-B Copy of Road certificate
Statement of the Accused u/s 313 Cr.P.C
4. Statement of accused was recorded u/s 313 Cr.P.C on 05.03.2025. The accused
stated that she is innocent. No recovery was effected from her 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. Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.05.13
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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
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 FIR No.227/2018, PS Karawal Nagar which is
Ex.A-1, DD No.25-A dated 15.05.2018 which is Ex.A-2 and Report of Chemical
Examiner dated 20.06.2018 which is Ex.A-3 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 15.05.2018 he was posted at
P.S. Karawal Nagar as ASI. He was on emergency duty with Ct. Bijender at Shiv Vihar,
Tiraha in front of Daru ka Theka. At about 8.00 pm they met secret informer and he
informed that one lady was standing with one plastic bag and it contains illicit liquor.
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
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He convey this information to PS and W/HC Rihana came to this spot. They noticed
that one lady was standing near Shiv Vihar, Tiraha, in front of daru ka theka. On seeing
them she was walking hastily and on suspicion they chased her with the help of W/HC
Rihana and apprehended her. He further deposed that one plastic can was recovered from
her shoulder on checking the same 11 quarter bottles of illicit liquor (5 quarter bottles
make of ‘Crazy Romeo’ and 6 quarter bottles make of ‘Santara for Sale in Haryana
only’) and 9 bottle of beers make of ‘King Fisher for sale in Haryana only’ were found.
During interrogation, the said lady revealed her name as Manju. He further deposed that
he requested four-five passersby to join in investigation but they all refused and left
without disclosing names and addresses. He took out three quarter bottle as sample from
the said katta and sealed it with seal of ‘AS’ and the said katta was also sealed with the
same seal and he filled up Excise Form. The seal was handed over to Ct. Bijender. The
seizure memo of case property and sample bottle is Ex. PW1/A. He prepared therir Ex.
PW1/B.
11. In the cross-examination he admitted that he is complainant as well as IO in this
case. He further testified that he did not remember the DD entry vide which IO departed
for the area. He further admitted that spot was a public place. He denied the suggestion
that no public person was joined during the investigation.
12. PW2 deposed in his examination in chief that on 15.05.2018 he was posted as
Constable at PS Karawal Nagar. On that day at around 8.00 pm, he alongwith ASI
Ashok Kumar were coming from performing their PCR call duty. When they reached
at Shiv Vihar Tiraha, one secret informer came to meet ASI Ashok Kumar and told
him that there was a lady who was carrying a plastic bag at Shiv Vihar, in front of
wine shop ad if raid would be conducted, she might be apprehended. IO ASI Ashok
Kumar requested three-four public persons to join the investigation but none agreed.
Thereafter, IO called to the Duty Officer of PS concerned and told him about this
Digitally
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ISRA
ISRA ZAIDI
ZAIDI Date:
2025.05.13
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FIR No. 227/2018 5 of 15 State Vs. Manju
information and also requested him to send lady police officer. After some time
W/HC Rihana came to the spot. Thereafter, he along with IO ASI Ashok Kumar and
W/HC Rihana apprehended that lady and checked her plastic bag and found 9 beer
bottles labelled as ‘United Beverage 650 ml’, eleven quarter bottles out of which five
quarter bottles were labelled as ‘Crazy Romeo’ and the cap of those five quarter
bottles was of yellow colour and remaining six quarter bottles were labelled as
‘Santra Desi for Sale in Haryana Only’. PW1 deposed that nine beer bottles were of
make “Kingfisher”. However, PW2 deposed that nine beer bottles were labelled as
“United Beverages”. It appears to be discrepancy in the version of prosecution
witnesses. If the evidence of the sole witness is in conflict with the other
witnesses, it may not be safe to make such a statement as a foundation of the
conviction of the accused. These are the few principles which the Court has
stated consistently and with certainty. Reference in this regard can be made to the
case of “Joseph v. State of Kerala (2003) 1 SCC”. IO prepared rukka Ex.PW-1/B
and handed over the same to him for registration of FIR. In the cross-examination he
admitted that spot was a public place. The DD entry vide which IO and he departed
for the area is 25-A dated 15.05.2018. He further admitted that no public person was
joined during the investigation. He denied the suggestion put to him by Ld. defence
counsel.
13. PW3 deposed that on 24.05.2018 he was posted as ASI at PS Karawal Nagar ad
on that day he received three samples from the MHCM vide RC No. 61/21/18 and
they were sealed with the seal of ‘AS’ and he deposited the same in Excise Control
Laboratory, ITO Delhi. He was not cross-examined despite opportunity given.
14. PW4 deposed that on 15.05.2018 he was posted at PS Karawal Nagar as
W/HC. On that day DO had informed her to visit Shiv Vihar Tiraha where a lady was
Digitally
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Date:
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apprehend by ASI Ashok Kumar with illicit liquor. Thereafter she reached the place
of incident i.e. Shiv Vihar Tiraha in front of wine shop where she met ASI Ashok
and Ct. Bijender who indicated towards the a lady and instructed to stop her.
Thereafter, she stopped the said lady who was carrying a plastic bag on her shoulder.
Thereafter, she got down the said plastic bag and checked the same and found 11
quarter bottles (05 quarter bottles make ‘Crazy Romeo’ and 06 quarter bottles make
‘Santra for Sle in Haryana Only’) and 09 beer bottles of make ‘Kingfisher for Sale in
Hryana Only’. Thereafter, IO took one sample bottle from each total 03 sample
bottles and the remaining case property seized in the said plastic bag with the seal of
‘AS’ vide memo is already Ex. PW-1/A . Thereafter, IO prepared tehrir. In the cross-
examination she admitted that the spot was a public place and no public witness was
joined by the IO during the investigation. She denied the suggestions put to her by
Ld. defence counsel.
15. PW5 brought Register No.19 and deposed that on 15.05.2018 he was posted as
MHCM at PS Karawal Nagar. On that day ASI Ashok had deposited the case property
in PS Malkhana. Thereafter, he had mentioned the entry of aforesaid case property in
Register No.19 which is Ex.PW-5/A (OSR), the copy of the same is Mark-A. He
further deposed that on 24.05.2018 ASI Om Prakash came to the PS Malkhana PS
Karawal Nagar and he handed over the sample of the case property to him.
Thereafter, ASI Om Prakash sent the same to Excise Department vide copy of entry
No. 61/21/18 as Mark-B. He was not cross-examined by Ld. defence counsel despite
opportunity given.
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
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ISRA ISRA
Date:
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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
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 8.00 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
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ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.05.13
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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.
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
Digitally
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ISRA ISRA
Date:
ZAIDI
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FIR No. 227/2018 9 of 15 State Vs. Manju
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
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 –
Digitally
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ISRA ISRA
Date:
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FIR No. 227/2018 10 of 15 State Vs. Manju
“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
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. PW1 deposed in his examination in chief that he recorded the disclosure
statement of the accused. The disclosure statement is already Ex. PW1/E. Perusal
of the same reveals that accused has stated that she is engaged in selling illicit
liquor for sustaining her an her and her family and that she was apprehended by
the police officials.
At this stage it is germane to mention section 27 of the Indian Evidence
Act, 1872.
“Section 27 how much of information received from the accused may
be proved- provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not as relates distinctly to the facts
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thereby discovered may be proved.
In the case of Md. Inayatulla Vs. State of Maharashtra AIR 1976 SC483
it was held that for the application of section 27 of the IEA the statement
must be split into its components and to separate the admissible portion.
Only those components or portion which were the immediate cause of
discovery would be relevant and rest must be rejected.”
24. Disclosure statement cannot be admissible there is no recovery pursuant to
the disclosure statement and there is no independent witness to the same.
Moreover, there is a doubt as to the recovery of the alleged quarter bottles of
illicit liquor from the possession of the accused. Derivative use of custodial
statement is not permissible in law. Disclosure statement is admissible only in
evidence if something is recovered from the accused which is not within the
knowledge of the police before recording the disclosure statement of the accused.
Hence, the same becomes inadmissible in law.
25. 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
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
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FIR No. 227/2018 12 of 15 State Vs. Manju
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.
26. The non-joining of the public witness at the time of alleged recovery of the
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.
27. 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.
28. 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.
Digitally
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ZAIDI
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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
reasonable doubt.
29. 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.
30. One another fact which this Court considers necessary to discuss here is that as
per the story of the prosecution 11 quarter bottles of illicit liquor and 9 beer bottles
were recovered. IO had taken three quarter bottles as sample from each lot.
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.
31. 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
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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
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.
32. 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 Manju 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 15 pages and each page bears my signature.
Digitally
signed by
ISRA
ISRA ZAIDI
ZAIDI Date:
2025.05.13
16:59:06
+0800
(Isra Zaidi)
JMFC-04/NE/KKD/Delhi
13.05.2025
FIR No. 227/2018 15 of 15 State Vs. Manju
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