Delhi District Court
State vs Smt Preeti Rana on 24 December, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 214/2018
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 16800/2019
State
Vs.
Preeti Rana
W/o Sh. Sandeep Rana
R/o RZ A-100, Gali no. 2,
Sitapuri, Part II, Dabri, New Delhi. ..... Accused
S. No. of the case : 16800/2019
The date of offence : 03.05.2018
The name of the complainant : HC Dharamveer
The name of the accused : Preeti Rana
The offence complained : 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 24.12.2024
The date of order : 24.12.2024
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief facts:
1.
It is the case of the prosecution that on 03.05.2018 ASI Dharambir alongwith Ct.
Jai Kishan were on patrolling duty in beat no. 3. At about 2.30 PM, when they
reached at Bhagat Chowk, Sitapuri he met one secret informer and he informed
him about illicit liqour with a lady at Gali no. 2, Sitapuri, Part-II, New Delhi. They
went there and found one lady outside her house, H. No. 100, Gali no. 2, Sitapuri,
Part-II. New Delhi was standing near the petty and upon checking he found one
FIR No.: 214/2018 State versus Preeti Rana Page No. 1 of 15
petty of illicit liquor with her. He informed in the PS and ASI Kamal along with
W/Ct. Mamta came to the spot. Thereafter, an FIR bearing no. 214/2018 u/s 33/38
Delhi Excise Act was registered at PS Dabri. Investigation of the case was handed
over to Investigating Officer ASI Kamal Singh who filed the chargesheet.
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed
against the present accused, i.e., Priti Rana. After taking cognizance of the offence,
the accused was summoned to face trial.
3. 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 had
pleaded not guilty and claimed trial.
4. During the course of the trial the prosecution examined the following witnesses:
i. ASI Dharambir was examined as PW1. He stated that on
03.05.2018, he was posted at PS Dabri as Ct.. On that day, he
alongwith Ct. Jai Kishan were on patrolling duty in beat no. 3. At
about 2.30 PM, when they reached at Bhagat Chowk, Sitapuri. He
met one secret informer and he informed him about illicit liqour
with a lady at Gali no. 2, Sitapuri, Part-II, New Delhi. They went
there and found one lady outside her house, H. No. 100, Gali no. 2,
Sitapuri, Part-II. New Delhi was standing near the petty. (Accused
is present in the court and correctly identified by witness) and upon
checking he found one petty of illicit liquor with her. He informed
in the PS. ASI Kamal alongwith W/Ct. Mamta came to the spot.
They went inside and found 35 petties of illicit liquor out of which
12 petties were of Asli Santara Masaledar Desi Sharab, 12 petties
were of Charlie Santara and 11 petties were of Crazy Romeo. HC
Jai Bhagwan and Ct. pawan also came from Excise Department andFIR No.: 214/2018 State versus Preeti Rana Page No. 2 of 15
joined the investigation. He took out one quarter bottle from each
petty and marked them from serial no. 1 to 12. The samples were
marked from A1 to A12. He took out on sample each from 12 petties
were of Charlie Santara and marked them serial no. 13 to 24. The
samples were marked from B1 to B12. He took out one quarter
bottle from Crazy Romeo each petty and marked them from serial
no. 25 to 35. The samples were marked from C1 to C11. All the
samples were put in three separate gunny bags and sealed with the
seal of DV. 12 petties of Asli Santara Masaledar Desi Sharab were
kept in gunny bags. Two petties were kept in one gunny bag and
sealed with seal of DV. All the liquor were kept in same fashion and
sealed with the seal of DV. After use the seal was handed over to Ct.
Jai Kishan. He prepared the tehrir which is Ex. PW1/1 (bearing his
signature at point A). ASI Kamal came at the spot. He handed over
tehrir to Ct. Jai Kishan for registration of FIR. He came back to spot
and handed over the original rukka and copy of FIR to ASI Kamal.
ASI Kamal prepared the site plan at his instance Ex. PW1/2. He
filled M-29 on the spot which is Ex. PW1/3 (bearing his signature at
point A). (At this stage, MHC(M) has produced destruction order of
case property issued by AC Excise. Same is taken on record and
Ex.P1 (OSR) (colly).) (At this stage, MHC(M) further produced
one quarter bottle of Asli Santra Masaledar Desi Sharab, qty 180
ml, one quarter bottle of Charli Santra and one quarter bottle Crazy
Romio of case property. The same are shown to the witness and
witness correctly identified the case property. The same are Ex.P2,
Ex. P3 and Ex. P4 respectively.)
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ii. In his cross examination he stated that he alone left the spot at about
9 PM. He do not remember the DD entry of his arrival back to PS as
he was in routine patrolling. He went to PS on private motorcycle.
Case property was taken to PS ASI Kamal. He cannot tell how he
had taken the same as he had already left the spot. There were
residential houses and public persons were passing by. Some public
persons were asked to join the proceedings but they refused to join
the same and left the spot. He came at the spot at about 02.50 PM on
his motorcycle alongwith Ct. Jai Kishan. Ct. Jai Kishan went to PS
with Tehrir at about 05.30 P.M. on his motorcycle. He came back to
the spot after the registration of FIR at about 07.30 P.M. on his
motorcycle alone. No notice was served upon public persons for
non joining the proceedings. Case property was not disposed off in
his presence. He affirmed that FIR No. was not mentioned on
remaining quarter bottles except samples, which were sent to
Excise Lab. He denied that nothing incriminating has been
recovered from the possession of the accused or at the instance of
accused or that all the proceedings had been conducted while sitting
at PS or that he is deposing falsely.
iii. ASI Jai Bhagwan was examined as PW 2. He stated that on
03.05.2018, he was posted at Excise Dept, Delhi. On that day, he
received an information by the secret informer that one vehicle
came in Gali No. 2, Sitapuri, Dabri and dropped illicit liquor there.
He also informed him that one lady is selling the same there in Gali
no. 2. Thereafter, he along with Ct. Pawan went to the spot where
he met HC Dharamveer and Ct. Jai Kishan. He informed them
regarding the information and thereafter, formed raiding team
including them. After that, HC Dharamvir asked public persons to
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join the investigation however all persons refused by stating their
personal reason and without stating their names. Thereafter, he
along with all the members reached at the spot where we saw one
lady standing outside the house i.e. H. No. 100, Gali No. 2 along
with carton boxes. Thereafter, HC Dharamvir apprehended her and
upon asking, she did not give any satisfactory answer and
thereafter, he checked the carton box and found containing illicit
liquor. HC Dharmvir seized the illicit liquor vide seizure memo Ex.
PW-2/A bearing his signature at point A i.e. 35 carton boxes out of
which 12 carton box of asli santra and 12 carton boxes of charlie
santra and 11 carton boxes of cracy romeo, out of which 1 sample
was taken out from each carton box, in total 35 samples were taken
out, all were sealed with the seal of DV and rest of the carton boxes
were placed in respective plastic katta and sealed with the seal of
DV. HC Dharmvir filled M29 form. After that HC Dharmvir
prepared the rukka in his presence already Ex. PW1/1. After that he
handed over seal to Ct. Jai Kishan and gave him rukka for
registration of FIR. Thereafter, he went to PS and got the FIR
registered, after sometime, ASI Kamal along with W/Ct. Mamta
came at the spot and the present case was marked to him. After that,
Ct. Jai Kishan came back at the spot and handed over copy of FIR
and original rukka to IO. IO/ASI Kamal prepared the site plan in
his presence already Ex. PW1/2. IO released the accused by giving
notice under section 41A Cr.P.C. IO recorded my statement u/s 161
Cr.P.C. He can identify the accused. (Accused is present in the court
and correctly identified by the witness.) He can identify the case
property, if shown to him. (At this stage, MHC(M) has produced
the case property i.e. one unsealed sample of asli santra masaledar
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desi sharab for sale in Haryana only, 180 ml, one unsealed sample
of cracy romeo masaledar desi sharab for sale in Haryana only, 180
ml and one unsealed sample of charlie santra masaledar desi sharab
for sale in Haryana only, 180 ml. The same is correctly identified by
the witness. The same is alerady Ex.P2, Ex. P3 and Ex. P4.)
MHC(M) has also produced a copy of destruction order issued by
AC Excise dated 14.10.2018. The same is already taken on record
and already marked as Ex. P1 (OSR) (colly).
iv. In his cross examination PW 2 stated that they left the spot at about
07.15 PM. There were residential houses and public persons were
passing by. Some public persons were asked to join the proceedings
but they refused to join the same and left the spot. IO ASI Kamal
came at the spot at about 06.15 PM on his motorcycle. No notice
was served upon public persons for non joining the proceedings.
Case property was not disposed off in his presence. His statement
was recorded at the spot. He do not know how case property was
taken to PS as he already left the spot before completing of
investigation. No seal handing over memo was prepared in his
presence. He denied that nothing incriminating has been recovered
from the possession of the accused or at the instance of accused or
that all the proceedings had been conducted while sitting at PS or
that he is deposing falsely.
v. ASI Kamal Singh was examined as PW 3. He stated that he was
posted at PS Dabri as ASI in the year 2018. On 03.05.2018, present
investigation was marked to him. Thereafter, he along with W/Ct.
Mamta went to the spot i.e. RZ A-100, Gali No. 2, Sitapuri Part II
where he met HC Dharambir, HC Jai Bhagwan and Ct. Pawan
alongwith accused and case property. Thereafter, HC Dharambir
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handed over him all the relevant documents prepared by him and
case property seized by him. Accused was taken in custody by
W/Ct. Mamta. He prepared site plan at the instance of HC
Dharambir already Ex. PW-1/2 bearing his signature at point X,
released the accused on notice u/s 41A Cr.P.C Ex. PW-3/A bearing
his signature at point X, recorded disclosure statement of accused
Ex. PW-3/B bearing his signature at point X. He recorded the
statement of witnesses u/s 161 Cr.P.C. After that, he left the spot and
deposited all the concerned documents and case property in the
malkhana. After completion of investigation, he filed the
chargesheet. (Accused is present in the court and correctly
identified by the witness.) He can identify the case property.
(MHCM has produced one quarter bottle of asli santra masaledar
desi sharab, 1 quarter bottle of charlie santra and one quarter bottle
of crazy romeo. Same is already Ex. P2, Ex. P3 and Ex. P4
respectively. Same is correctly identified by the witness.)
vi. In his cross examination PW 3 stated that he came at the spot at
about 07:00 PM and left the spot at about 08:30 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 his presence.
He affirmed that he do not know my departure or arrival entries
pertaining to the day of incident. Case property was taken to PS on
Chhota hathi. He do not know the registration number of the same.
He affirmed that rukka, seizure memo and form M29 was prepared
by HC Dharambir before he reached the spot and before registration
of FIR. He denied that nothing incriminating has been recovered
from the possession of the accused or at the instance of accused or
that all the proceedings had been conducted while sitting at PS or
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that he is deposing falsely.
5. Statement of accused was recorded under Section 294 CRPC and she admitted the
following documents:
(a) FIR No. 214/2018 PS-Dabri as Ex. P/A/2.
(b) Report of Excise Lab as Ex. P3.
6. Thus, witness at serial No 3, 6, 4, 7, 8 and 9 were dropped from the list of witness.
7. The prosecution evidence was closed and thereafter the statement of accused u/s
313 CrPC r/w Section 281 CrPC was recorded on 11.11.2024 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 was falsely implicated in this present case. That she is innocent and
all the witnesses deposing against her are interested witnesses. The accused chose
not to lead any evidence in her defence.
8. 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, 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.
9. 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.
10. 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
11. 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
FIR No.: 214/2018 State versus Preeti Rana Page No. 8 of 15
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 touchstone of the above settled
legal proposition the facts of the present case are to be analysed.
I. Non-joining of Public Witnesses
12. 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.
13. This court has given its thoughts to the above contention of Ld. Counsel for the
accused. Perusal of the testimonies of all the prosecution witnesses 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.
14. 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 theFIR No.: 214/2018 State versus Preeti Rana Page No. 9 of 15
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).
15. 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.
16. PW 1, PW 2 and PW 3 in their cross examination 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.
17. 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 withFIR No.: 214/2018 State versus Preeti Rana Page No. 10 of 15
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.
18. There exists yet another discrepancy in the case of the prosecution. PW 3/IO in his
examination categorically stated that the rukka, seizure memo and Form M 29 was
prepared by HC Dharambir PW 1 before he reached the spot and before registration
of the FIR. Further PW 1 in his testimony stated that rukka, seizure memo and
Form M 29 was prepared by him and he handed over the rukka to Ct Jai Kishan for
registration of FIR. Thus, it is clear from the testimony of PW 3/IO that the rukka,
seizure memo and Form M 29 was prepared before the tehrir/original rukka was
handed over by PW1 to Ct Jai Kishan 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 3/IO
only after a copy of the FIR was brought to the spot by Ct Jai Kishan. 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.
19. 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:
“Learned counsel for the State concedes that
immediately after the arrest of the accused, his personalFIR No.: 214/2018 State versus Preeti Rana Page No. 11 of 15
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.”
20. 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 about the
discrepancy, i.e., appearance of FIR number on seizure memo and other documents
before registration of FIR and it runs as under:
FIR No.: 214/2018 State versus Preeti Rana Page No. 12 of 15
“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.”
21. 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 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.
FIR No.: 214/2018 State versus Preeti Rana Page No. 13 of 15
IV. No departure or the arrival entry of PW 1.
22. The present case rests entirely on the alleged recovery of case property, i.e. illicit
liquor, from the possession of the accused at the relevant time by a police official
PW 1 ASI Dharambir and Ct Jai Kishan, who were on patrolling duty at the
relevant time and place, as per the prosecution story.
23. Police officials are under a statutory duty to mark their departure and arrival in the
register kept in the police station for the purpose as per the Punjab Police Rules.
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 placed upon Rattan
Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
“if the investigating agency deliberately ignores to
comply with the provisions of the Act, the courts will
have to approach their action with reservations. The
matter has to be viewed with suspicion if the provisions
of law are not strictly complied with and the least that can
be said is that it is so done with an oblique motive. This
failure to bring on record, the DD entries creates a
reasonable doubt in the prosecution version
and attributes oblique motive on the part of the
prosecution.”
FIR No.: 214/2018 State versus Preeti Rana Page No. 14 of 15
24. In the present matter there exists no entry which could even remotely suggest that
PW 1 was assigned patrolling duty on the given date and time and he went for the
purpose of patrolling at the given date and time.
25. 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 Preeti Rana W/o Sh. Sandeep Rana is,
therefore, acquitted of the offence u/s 33 Delhi Excise Act.
Announced in the open court on 24.12.2024.
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 24.12.2024
It is certified that the present judgment runs into 15 pages and each page
bears my signature.
(Harshal Negi)
JMFC-02/DwarkaCourt,
New Delhi, 24.12.2024
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