Delhi District Court
State vs Pinky on 24 July, 2025
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, ND.
FIR No.668/2018
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 7758/2020
State Vs. Pinky
W/o Rajender Kumar
R/o C-70, JJ Colony, Pocket 4, Bindapur, New Delhi
..... Accused
S. No. of the case : 7758/2020
The date of offence : 12.09.2022
The name of the complainant : Ct. Naresh
The name of the accused : Pinky
The offence complained : Section 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 24.07.2025
The date of order : 24.07.2025
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that on 01.12.2018, HC
Naresh was on patrolling duty in beat no. 2. When he
reached at C-70, JJ Colony, Pocket 4, Bindapur, he saw
accused carrying carton box towards C-70. On seeing her
moving, he ran towards her and stopped her, asked her
what is inside the carton box. Upon asking, she did not
give any satisfactory answer and thereafter, he checked
the carton box and found containing illicit liquor. There
were 15 carton boxes were also lying in front of the
FIR NO. 668/2018 State Vs. Pinky 1
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NEGI
HARSHAL Date:
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house. HC Naresh informed about this to the DO.
Thereafter, HC Dipti along with W/Ct. Mamta came to
the spot.
2. An FIR bearing no. 668/2018 u/s 33/38 Delhi Excise Act
was registered at PS Dabri against the accused.
Investigation of the case was handed over to
Investigating Officer HC Dipti who filed the chargesheet.
3. On completion of investigation, a chargesheet u/s 33
Delhi Excise Act was filed against the accused. After
taking cognizance of the offence, the accused was
summoned to face trial.
4. On her appearance, a copy of chargesheet along with
documents were supplied to the accused in terms of
Section 207 of the Code of Criminal Procedure
(hereinafter referred to as ‘CrPC‘). On finding prima
facie case against the accused, a charge under section 33
Delhi Excise Act was framed against her, to which she
pleaded not guilty and claimed trial.
5. During the course of trial, the prosecution examined the
following witnesses.
6. HC Naresh was examined as PW1. He stated thus: “On
01.12.2018, I was posted at PS Dabri as Constable. On
that day, I was on patrolling duty in beat no. 2. When I
reached at C-70, JJ Colony, Pocket 4, Bindapur, I saw
accused carrying carton box towards C-70. On seeing her
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moving, I ran towards her and stopped her, asked her
what is inside the carton box. Upon asking, she did not
give any satisfactory answer and thereafter, I checked the
carton box and found containing illicit liquor. There were
15 carton boxes were also lying in front of the house. I
informed about this to the DO. Thereafter, HC Dipti
along with W/Ct. Mamta came to the spot. IO asked 4-5
public person to join the investigation but they refused to
join the same by stating their personal reasons and
without stating their names. I handed over abovesaid
carton box full of illicit liquor to the IO/HC Dipti and
accused to W/Ct. IO inspected the said carton boxes i.e.
total 16 carton boxes out of which 9 carton boxes were
found containing asli santra masaledar desi sharab for
sale in Haryana only, 180 ml, each carton box containing
50 quarter bottles, 3 carton boxes of crazy romeo whisky,
each carton box containing 48 quarter bottles, 3 carton
boxes of blue mood whiskey each carton box containing
48 quarter bottles and 1 carton box of partly special, each
carton box containing 48 quarter bottles, from which two
quarter bottles from each carton box were taken as
sample, the same was sealed with the seal of DP and rest
of the quarter bottles were placed in the respective carton
boxes and those carton boxes were put in different plastic
kattas and sealed with the seal of DP. IO prepared seizure
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memo vide Ex. PW1/A. IO filled M29 form. After that IO
recorded my statement which is Ex. PW1/B (bearing my
signature at point A) and prepared the rukka in my
presence Ex. PW1/C. After that IO handed over seal to
me and gave me rukka for registration of FIR. Thereafter,
I went to PS and got the FIR registered, after sometime, I
came back at the spot and handed over copy of FIR and
original rukka to IO. IO prepared the site plan at my
instance Ex. PW1/D bearing my signature at point A.IO
released the accused on pabandinama. IO recorded my
statement u/s 161 Cr.P.C. I can identify the accused.
Accused is absent. Ld. counsel submits that her identity is
not disputed. I can identify the case property, if shown to
me. At this stage, MHC(M) has produced the case
property i.e. 1 unsealed sample of asli santra masaledar
desi sharab for sale in Haryana only, 180 ml, 1 unsealed
sample of blue mood whiskey, 1 unsealed sample of
crazy romeo and 1 unsealed sample of party special. The
same is correctly identified by the witness. The same is
Ex.A1 (colly). MHC(M) has also produced a copy of
destruction order dated 14.03.2019. Present FIR is
mentioned at S no. 12. The same is taken on record and
marked as Ex. A2 (OSR) (colly).
7. In his cross examination PW 1 stated thus: “IO came at
the spot at about 02:30 PM and left the spot at about
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08:00 PM. I went to PS for registration of FIR at about
05:30 PM and came back at the spot at about 06:30 PM.
There were houses and shops near the spot. No notice was
served to any public person. No seal handing over memo
was prepared in my presence. It is incorrect to suggest
that nothing incriminating has been recovered from the
possesion of the accused or at the instance of accused or
that all the proceedings had been conducted while sitting
at PS or that I am deposing falsely.”
8. W/HC Kavita was examined as PW2. In her examination
PW 2 stated thus: “On 19.12.2018, I was posted at PS
Dabri as W/Ct. On that day, on the instructions of IO HC
Dipti Singh, I took the accused Pinky in the custody and
she was arrested vide arrest memo Ex. PW-2/A bearing
my signature at point A, personal search Ex. PW-2/B
bearing my signature at point A. After that, I recorded
disclosure statement of accused in my presence, Ex.
PW-2/C bearing my signature at point A. After that, I took
the accused for medical examination and got her medical
examined from DDU Hospital.”
9. In her cross examination PW 2 stated thus: “I took
accused for medical examination at about 01:30 PM. It is
wrong to suggest that I am deposing falsely at the
instance of IO and all the proceedings were done while
sitting at PS.”
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10. HC Bahadur Singh was examined as PW3. In his
examination PW 3 stated thus : “On 28.01.2019, I was
posted at PS Dabri as MHCM. On that day, I handed over
one plastic katta sealed with the seal of DP to Ct. Manoj
and instructed him to deposit the same at Excise Lab,
Vikas Bhawan, ITO vide RC No. 18/21/19 already
marked as Mark Y. Thereafter, Ct. Manoj deposited the
same without any tampering. During investigation IO
recorded my statement u/s 161 Cr.P.C.” Opportunity was
given to the accused to cross examine PW3, however, no
cross examination was carried out.
11. HC Dipti was examined as PW4. In his examination PW
4 stated thus: “On 01.12.2018, I was posted at PS Dabri.
On that day, on receiving DD No. 51B regarding the
apprehension of accused along with illicit liquor I along
with W/Ct. Mamta reached at the spot i.e C-70, Pocket 4,
JJ Colony, Delhi where Ct. Naresh met me and handed
over the accused along with recovered liquor from him
to me. I requested some passers by to join the
proceedings but none agreed and left the place without
disclosing their names and address. In between, HC
Anirudh and Ct. Brijesh from Vikas Bhawan ITO also
came at the spot who informed us that they have
received the information regarding the illicit liquor.
Thereafter, the said 16 carton boxes was checked, out of
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which 9 carton boxes of asli santra masaledar each
carton box containing 50 qt bottles, 3 carton boxes of
blue mood whiskey each containing 48 qt bottles, 1
carton box of party special each containing 48 qt bottles.
Thereafter, I took out two qt bottles (one from each
carton box) as sample and the rest of the case property
sealed with the seal of DP. The sample bottles were also
sealed with the seal of DP. Form M-29 was filled up
Mark D bearing my signature at point X. Seizure memo
of case property was prepared vide memo already Ex.
PW1/A bears my signature at point X. Thereafter, I
recorded statement of Ct. Naresh which is already
Ex.PW1/B bears my attesting signature at point X and
prepared a rukka already Ex.PW1/C bearing my
signature at point X and handed over the same to Ct.
Naresh for the registration of the case. He went to PS
and after getting the case registered returned to the spot
and handed over the copy of FIR and original rukka to
me. I prepared the site plan already Ex.PW1/D bearing
my signature at point X. I released the accused on
furnishing the undertaking as per the provisions of
Section 41 Cr.P.C. Ex. PW-4/A bearing my signature at
point A. Thereafter, we left the spot case property and
samples were deposited in the malkhana. I recorded the
statement of witnesses. During investigation, on
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19.12.2018, accused came at PS, thereafter, I arrested
the accused with the help of W/Ct. Kavita vide memo
already Ex. PW-2/A bearing my signature at point X.
Accused is present in the court today correctly identified
by the witness. I can identify the case property if shown
to me. Ld. Counsel for accused submits that identity of
case property is not disputed as same is Ex. A1 (colly)
and Ex. A2 (OSR) (colly).
12. In his cross examination PW 4 stated thus: “I came at the
spot at about 02:30 PM and left the spot at about 08:30
PM. Ct. Naresh went to PS for registration of FIR at about
05:30 PM and came back at the spot at about 06:15 PM.
When I arrested the accused, information regarding the
same was given to her husband and her son. There were
houses and shops near the spot. No notice was served to
any public person. No seal handing over memo was
prepared in my presence. It is correct that I do not know
my departure or arrival entries pertaining to the day of
incident. Case property was taken to PS in e-rickshaw. I
cannot tell the registration number of e-rickshaw. I did
not record the statement of the driver of e-rickshaw nor I
can tell his name. It is incorrect to suggest that nothing
incriminating has been recovered from the possession of
the accused or at the instance of accused or that all the
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proceedings had been conducted while sitting at PS or
that I am deposing falsely.”
13. Statement of accused was recorded under Section 294
CRPC and she admitted the following documents:
a. FIR No. 668/2018 PS-Dabri as Ex. P1.
b. Entry in register no 19 at RC No 18/21/19 as Mark
Y.
c. Report of Excise Lab as Ex P4.
d. GD No 51B dated 01.12.2018 and 72B dated
15.03.2019 Ex P2 and Ex P3 respectively.
14. Thus, witness at serial No 4, 5, 6, 7, 8 and 10 were
dropped from the list of witness.
15. The prosecution evidence was closed and thereafter the
statement of accused u/s 313 CrPC r/w Section 281 CrPC
was recorded on 28.05.2025 wherein all the
incriminating evidence appearing against the accused
was put to her, which she had denied to be correct and
submitted that she was not found in possession of illicit
liquor. That she has been falsely implicated in this present
case. That she is innocent and all the witnesses deposing
against him are interested witnesses. The accused chose
not to lead any evidence in her defence.
16. It is argued by Ld. APP for the State that it is clear from
the statement of the complainant and other witnesses as
well as the documents appearing on record that the
accused was in possession of illicit liquor. He has thus,FIR NO. 668/2018 State Vs. Pinky 9
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submitted that the prosecution has proved its case beyond
reasonable doubt against the accused and she be,
therefore, held guilty and convicted for the above-said
offence.
17. Per contra, Ld. Counsel for the accused has argued that
the State has failed to establish its case beyond reasonable
doubt and since nothing incriminating has appeared
against the accused, she be, therefore, acquitted for the
offence charged.
18. I have heard the Ld. APP for the State and Ld. Defence
counsel at length, perused the record, gone through the
relevant provisions of law and given my thoughts to the
matter.
Findings of the Court
19. Before embarking on the analysis and appreciation of the
statements and evidences on record it is apposite to state
that to bring home the guilt of the accused in any criminal
matter beyond the shadow of reasonable doubt the burden
rests always upon the prosecution. The burden of proof
on the prosecution is heavy, constant and does not shift.
The case of the prosecution needs to stand on its own
footing failing which benefit of doubt ought to be given
in favour of the accused. Needless to say, in this case also,
with or without defense evidence, the prosecution has to
establish its case beyond reasonable doubt. On the
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touchstone of the above settled legal proposition the facts
of the present case are to be analysed.
I. Non-joining of Public Witnesses
20. One of the arguments of Ld. Counsel for the accused is
that since no independent witness has been joined at the
time of investigation, it is, therefore, difficult to believe
the prosecution version as it creates a doubt on the
veracity of the statement of police witnesses.
21. This court has given its thoughts to the above contention
of Ld. Counsel for the accused. Perusal of the testimony
of PW-1 and PW 4/IO reveal that they have categorically
stated that there were residential houses and public
persons were passing by. They had also asked public
persons to join the investigation, but none of them had
agreed. Thus, it is not the case of the prosecution that no
public person was present at or near the spot of recovery.
However, it is equally true that no steps are shown to have
been taken to note down the names and addresses of those
persons. It is a well settled proposition of law that non-
joining of public witness throws doubt over the fairness
of the investigation by police. Section 100 (4) of the
CrPC also casts a statutory duty on an official conducting
search to join two respectable persons of the society.
However, no public person has been joined by the IO in
the present case.
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22. In a case titled as Nanak Chand Vs. State of Delhi, 1990
SCC OnLine Del 469, Hon’ble High Court of Delhi has
observed as under:
“The recovery was from a street with houses on
both sides and shops nearby. And, yet no witness
from the public has been produced. Not that in every
case the police officials are to be treated as
unworthy of reliance but their failure to join
witnesses from the public especially when they are
available at their elbow, may, as in the present case,
cast doubt. They have again churned out a
stereotyped version. Its rejection needs no
Napoleon on the Bridge at Arcola (Emphasis
supplied).
23. In the present case also, non-joining of any public person
as a witness creates doubt on the case of the prosecution.
Although, this Court is conscious of the fact that it is a
well settled law that the prosecution case cannot be
thrown out or doubted on the sole ground of non-joining
of public witnesses as they keep themselves away from
the Court unless it is inevitable, however, in the present
case, it is not only the absence of public witnesses which
raises a doubt on the prosecution version but there are
other circumstances too, as discussed in the later part of
the judgment, which raise suspicion over the prosecution
case.
II. No seal Handing over memo.
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24. PW 4/IO in his cross examination stated that no seal
handing over memo was prepared by him. PW 1 also
stated that no seal handing over memo was prepared.
Thus, in the instant case no handing over memo of the
seal was prepared which can suggest that case property
remained intact and there is no tampering with the same.
25. As per evidence available on record, the seal after use
was not given to any independent public person. Further,
there is nothing on record to prove whether the said seal
was ever deposited in the Malkhana of Police Station or
not. In such case, tampering with case property can also
not be ruled out. As a result, the benefit of doubt has to be
given to the accused. Reliance is placed upon the decision
in Safiullah v. State, (1993) 49 DLT 193, where the
Hon’ble High Court of Delhi observed:
“9. … The seal after use were kept by the police
officials themselves therefore the possibility of
tempering with the contents of the sealed parcel
cannot be ruled out. It was very essential for the
prosecution to have established from stage to stage
the fact that the sample was not tempered with. ……
Once a doubt is created in the preservation of the
sample the benefit of the same should go to the
accused.”
III. Discrepancy in the case qua Seizure Memo and Form
M 29.
26. There exists yet another discrepancy in the case of the
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prosecution. PW 4/IO in his examination categorically
stated that he prepared the site plan, seizure memo, rukka
and Form M 29 and then handed over the rukka to PW 1
for the purpose of registration of FIR. PW1, thereafter,
went to the PS and got the FIR registered. PW 1 also
submitted the same. Thus, it is clear from the testimony of
PW 4/IO and PW 1 that the seizure memo and Form M 29
were prepared before the tehrir/original rukka was
handed over by PW4 IO to PW1 for registration of the
FIR. The FIR was thus, admittedly registered after the
preparation of the seizure memo and Form M 29,
however, surprisingly it bears the FIR number and it is
thus worth wondering that if the FIR was never registered
at the time when the seizure memo and Form M 29 were
prepared, how the FIR number came to be noted in the
seizure memo and Form M 29 since the number of the
FIR could have come to knowledge of PW 4/IO only after
a copy of the FIR was brought to the spot by PW 1. Thus,
the number of FIR in no circumstances could have been
mentioned by the IO on the seizure memo and Form M
29, which came into existence before registration of the
FIR.
27. In this context, Hon’ble High Court of Delhi in Pawan
Kumar v. The Delhi Administration, 1987 SCC OnLine
Del 290, has observed as under in paragraph 6:
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“Learned counsel for the State concedes that
immediately after the arrest of the accused, his
personal search was effected and the memo Ex.
PW11/D was prepared. Thereafter, the sketch plan
of the knife was prepared in the presence of the
witnesses. After that, the ruqa EX. PW11/F was sent
to the Police Station for the registration of the case
on the basis of which the FIR, PW11/G was
recorded. The F.I.R. is numbered as 36, a copy of
which was sent to the I.O. after its registration. It
comes to that the number of F.I.R. came to the
knowledge of the I.O. after a copy of it was
delivered to him at the spot by a constable. In the
normal circumstances, the F.I.R. No. should not find
mention in the recovery memo or the sketch plan
which had come into existence before the
registration of the case. However, from the perusal
of the recovery memo, I find that the FIR is
mentioned whereas the sketch plan does not show
the number of the FIR. It is not explained as to how
and under what circumstances the recovery memo
came to bear the F.I.R. No. which had already come
into existence before the registration of the case.
These are few of the circumstances which create a
doubt, in my mind, about the genuineness of the
weapon of offence alleged to have been recovered
from the accused.”
28. In another case titled Mohd. Hashim v. State, 1999 SCC
OnLine Del 859, the Hon’ble High Court of Delhi while
dealing with an appeal under the Narcotic Drugs and
Psychotropic Substances Act, 1985 has also observed
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about the discrepancy, i.e., appearance of FIR number on
seizure memo and other documents before registration of
FIR and it runs as under:
“Surprisingly, the secret information (Ex. PW7/A)
received by the Sub-Inspector Narender Kumar
Tyagi (PW-7), the notice under Section 50 of the Act
(Ex. PW5/A) alleged to have been served on the
appellant, the seizure memo (Ex. PW1/A) and the
report submitted under Section 57 of the Act (Ex.
PW7/D) bear the number of the FIR (Ex. PW4/B).
The number of the FIR (Ex. PW4/B) given on the
top of the aforesaid documents is in the same ink
and in the same handwriting, which clearly
indicates that these documents were prepared at the
same time. The prosecution has not offered any
explanation as to under what circumstance number
of the FIR (Ex. PW4/B) had appeared on the top of
the aforesaid documents, which were allegedly
prepared on the spot. This gives rise to two
inferences that either the FIR (Ex. PW4/B) was
recorded prior to the alleged recovery of the
contraband or number of the said FIR was inserted
in these documents after its registration. In both the
situations, it seriously reflects upon the veracity of
the prosecution version and creates a good deal of
doubt about recovery of the contraband in the
manner alleged by the prosecution.”
29. In the light of the abovesaid judgments, the mentioning of
the number of FIR in the seizure memo creates serious
doubt on the prosecution version and alleged recovery of
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illicit liquor and it leads to only one conclusion that either
the said document was prepared later on or that the FIR
was registered earlier in point of time. In both the
aforesaid eventualities, a reasonable doubt has been
raised on the version of the prosecution the benefit of
which has to be given to the accused.
30. Thus, in light of the above discussions which throws
doubt on the authenticity of the prosecution version, this
court is of the opinion that prosecution has failed to prove
its case beyond reasonable doubt that illicit liquor was
recovered from the possession of the accused. The
accused Pinky, is, therefore, acquitted of the offence u/s
33/38 Delhi Excise Act.
Announced in the open court on 24.07.2025.
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 24.07.2025
It is certified that the present judgment runs into 17 pages and
each page bears my signature.
(Harshal Negi)
Digitally
signed by JMFC-02/DwarkaCourt,
HARSHAL New Delhi,
HARSHAL NEGI
24.07.2025
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