Delhi District Court
State vs Smt Sarika on 24 December, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No.: 235/2019
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 727/2020
State
Vs.
Sarika
W/o Sh. Sher Singh
R/o H. No. K-13, Vijay Enclave, New Delhi. ..... Accused
S. No. of the case : 727/2020
The date of offence : 07.04.2019
The name of the complainant : Ct. Naresh
The name of the accused : Sarika
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 07.04.2019, HC Naresh while on patrolling
duty in beat no. 5 reached near H. No. K-13, Tamil Enclave, Vijay Enclave, and
saw a lady carrying one plastic katta on her head. Upon seeing him in uniform,
she started moving fast. On seeing her moving, he ran towards her and stopped
her, asked her what is inside the plastic katta. Upon asking, she did not give any
satisfactory answer and thereafter, he checked the plastic katta and found
containing illicit liquor. He informed about this to the DO. Thereafter, HC Deshraj
FIR No.: 235/2019 State versus Sarika Page No. 1 of 15
along with W/Ct. Sunderbai came to the spot. Thereafter, an FIR bearing no.
235/2019 u/s 33/38 Delhi Excise Act was registered at PS Dabri. Investigation of
the case was handed over to Investigating Officer HC Deshraj 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., Sarika. 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. W/HC Sunder Bai was examined as PW1. She stated that on 07.04.2019,
she was posted at PS Dabri as Constable. On that day, IO HC Deshraj
received the DD no. 71B and thereafter, she alongwith him went to the
spot i.e. H.No. K-13, Tamil Enclave, Vijay Enclave, Dabri, where they
met Ct. Naresh and one lady namely Sarika present at the spot. IO
recorded the statement of Ct. Naresh in her presence, which is
Ex.PW1/1 and prepared the tehrir Ex.PW1/2. Thereafter, the IO got
registered the FIR through Ct. Naresh. Ct. Naresh came back to the spot
after sometime and handed over the copy of FIR and original rukka to
the IO. IO prepared the site plan Ex.PW1/3 in her presence at the
instance of Ct. Naresh. The DD no.71B dated 07.04.2019 is Ex.PW1/4.
IO seized the illicit liqour vide seizure memo Ex.PW1/5 in her presence.
IO gave notice under Section 41A Cr.P.C. to the accused which is
Ex.PW1/6 in her presence. IO gave the pabandi nama to the accusedFIR No.: 235/2019 State versus Sarika Page No. 2 of 15
which is Ex.PW1/7. IO fill the form M29 on the spot which is
Ex.PW1/8 in her presence. IO recorded the statement of all the
witnesses. IO counted the illicit liqour and found 144 quarter bottles of
Asli Santra Masaledar Desi Sharab for sale in Haryana only. IO took
out two quarter bottles as sample and sealed them with the seal of DRY.
IO put the remaining quarter bottles in the plastic gunny bag, back and
sealed the mouth of the gunny bag with the white cloth and thereafter,
put the seal of DRY. After use, the seal was handed over to Ct. Naresh.
(At this stage, MHC(M) has produced the case property which is one
quarter bottle of Asli Santra Masaledar Desi Sharab for sale in Haryana
only is Ex.X1. The destruction order of Commissioner Excise dated
13.02.2020 is Ex.X2.)
ii. In her cross examination PW 1 stated that they all left the spot after the
completion of the investigation at about 11 P.M. She went to the PS
alongwith IO on his motorcycle. They had reached at the spot at about
09.45 P.M. on the motorcycle of the IO. Ct. Naresh had took the case
property to PS but she do not remember how he had taken the same to
PS. Ct. Naresh went to PS at around 11 P.M. and she do not remember
when he came back to the spot. At the spot there are residential
house/shops and public were passing by. She denied that nothing
incriminating had been recovered from the possession of the accused or
at her instance or that all the proceedings have been conducted while
sitting at the PS or that she is deposing falsely.
iii. HC Satish Kumar was examined as PW2. He stated that on 04.06.2019,
he was posted at PS Dabri as Ct. On that day, MHCM handed over him
two quarter bottles of asli santra masaledar desi sharab samples to be
deposited at Excise Lab, ITO, Vikas Bhawan vide RC No. 128/21/19
FIR No.: 235/2019 State versus Sarika Page No. 3 of 15
marked as Mark X. After that he deposited the same without any
tampering. During investigation, IO recorded his statement u/s 161
Cr.P.C. (At this stage, MHCM produced one quarter bottle of asli santra
masaledar desi sharab, same is shown to the witness. Witness correctly
identified the same. Same is already Ex. X1.) Opportunity was given to
the accused to cross examine the witness, however,, no cross-
examination was carried out.
iv. HC Naresh was examined as PW3. He stated that on 07.04.2019, he was
posted at PS Dabri as Constable. On that day, he was on patrolling duty
in beat no. 5. When he reached near H. No. K-13, Tamil Enclave, Vijay
Enclave, he saw a lady carrying one plastic katta on her head. Upon
seeing him in uniform, she started moving fast. On seeing her moving,
he ran towards her and stopped her, asked her what is inside the plastic
katta. Upon asking, she did not give any satisfactory answer and
thereafter, he checked the plastic katta and found containing illicit
liquor. He informed about this to the DO. Thereafter, HC Deshraj along
with W/Ct. Sunderbai 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. He handed over
abovesaid plastic katta full of illicit liquor to the IO/HC Deshraj and
accused to W/Ct. Sunderbai. IO inspected the said plastic katta which
was found containing total 144 quarter bottles of asli santra masaledar
desi sharab for sale in Haryana only, 180 ml, from which two quarter
bottles from plastic katta was taken as sample, the same was sealed with
the seal of DRY and rest of the quarter bottles were placed in the white
katta and sealed with the seal of DRY. IO prepared seizure memo vide
already Ex. PW1/5 bearing his signature at point A. IO filled M29 form.
FIR No.: 235/2019 State versus Sarika Page No. 4 of 15
After that IO recorded his statement which is already Ex. PW1/1
(bearing his signature at point A) and prepared the rukka in his presence
already Ex. PW1/2. After that IO handed over seal to him and gave him
rukka for registration of FIR. Thereafter, he went to PS and got the FIR
registered, after sometime, he came back at the spot and handed over
copy of FIR and original rukka to IO. IO prepared the site plan at his
instance Ex. PW1/3. IO recorded disclosure statement of accused vide
memo Ex. PW3/A (bearing his signature at point A). IO released the
accused by giving notice under section 41A Cr.P.C. already Ex. PW1/6.
IO recorded his statement u/s 161 Cr.P.C. He can identify the accused.
(Accused is present in the court and correct 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 desi sharab for sale in Haryana only, 180 ml. The
same is correctly identified by the witness. The same is already Ex.X1.
MHC(M) has also produced a copy of destruction order dated
13.02.2020. The same is taken on record already Ex. X2 (OSR).)
v. In his cross examination PW 3 stated that they left the spot at about
12.30 AM. He reached at the spot at about 09:45 PM and IO reached at
about 10:20 PM. He went to PS on his motorcycle and IO and W/Ct.
along with case property went to the PS on motorcycle. 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. There are no shops. His statement was recorded
at the spot and another at PS. He deposited the seal in the malkhana. No
seal handing over memo was prepared. The distance between the spot
and PS is about 1.5 kms. He denied that nothing incriminating has been
FIR No.: 235/2019 State versus Sarika Page No. 5 of 15
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 he is deposing falsely.
vi. HC Desh Raj was examined as PW 4. He stated that on 07.04.2019, he
was posted at PS Dabri. On that day, on receiving DD No. 71B
regarding the apprehension of accused along with illicit liquor he
along with WCt. Sunder Bai reached at the spot i.e H. No. K-13, Tamil
Enclave, Vijay Enclave, Delhi where Ct. Naresh met him and handed
over the accused along with recovered liquor to him. He requested
some passersby to join the proceedings but none agreed and left the
place without disclosing their names and address. Thereafter, the said
katta was checked it was found containing 144 qtr. Bottles of Asli
Santra Masaledar Desi Sharab. Thereafter, he took out two bottles as
sample and the rest of the case property sealed with the seal of DRY.
The sample bottles were also sealed with the seal of DRY. Form M-29
was filled up by him, which is Ex. PW-4/A, bearing his signatures at
Point-X. Seizure memo of case property was prepared vide memo
already Ex. PW-1/5 bears his signature at point X. Thereafter, he
recorded statement of Ct. Naresh, which is already Ex.PW-1/1 bears
his attesting signature at point X and prepared a rukka already
Ex.PW-1/2 bearing his 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 him. He prepared the site plan
already Ex.PW-1/3 bearing his signature at point X. Accused was
allowed to leave on furnishing the undertaking as per the provisions of
Section 41 Cr.P.C. Same is already Ex. PW-1/6, bearing his signatures
FIR No.: 235/2019 State versus Sarika Page No. 6 of 15
at Point-X. Thereafter, they left the spot case property and samples
were deposited in the malkhana. He recorded the statement of
witnesses. (Accused is absent. ld. Counsel for the accused submits that
her identity is not disputed. He further submits that the identity of the
case property is also not disputed as the same is already identified by
PW-1 & PW-3 as Ex. X-1 & Ex. X-2.)
vii. In his cross examination PW 4 affirmed that he have not prepared any
seal handing over memo while handing over seal to Ct. Naresh. He
affirmed that he have not served any notice to any public person to join
the investigation. He reached at the alleged spot at about 10:15 PM and
left the spot at about 12 Mid Night. Case property was taken to PS on
ERV. He affirmed that he cannot tell the registration number of the
ERV. He affirmed that Form M-29, seizure memo, statement of Ct.
Naresh and rukka were prepared before registration of FIR. Ct. Naresh
went to PS for registration of FIR at about 11:05 PM and came back at
the spot at about 11:40 PM. He denied that all the documents were
prepared while sitting at PS or that nothing was recovered from the
accused or that the accused was falsely implicated in the present case or
he is deposing falsely.
5. Statement of accused was recorded under Section 294 CRPC and she admitted the
following documents:
(a) FIR No. 235/2019 PS-Dabri as Ex. P/A/1.
(b) Report of Excise Lab dated 26.06.2019 as Ex. P/A/2.
6. Thus, witness at serial No 3 and 5 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 21.11.2024 wherein all the
incriminating evidence appearing against the accused was put to her, which she
FIR No.: 235/2019 State versus Sarika Page No. 7 of 15
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 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.
FIR No.: 235/2019 State versus Sarika Page No. 8 of 15
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 testimony of PW-3 and PW 4 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 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 noFIR No.: 235/2019 State versus Sarika Page No. 9 of 15
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 4/IO in his cross examination stated that no seal handing over memo was
prepared. PW 3 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.
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 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 inFIR No.: 235/2019 State versus Sarika Page No. 10 of 15
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 4/IO in his
examination categorically stated that he prepared the seizure memo and Form M
29 and thereafter he recorded the statement of PW 3 and prepared the rukka and
after the preparation of rukka he got the FIR registered through PW3. The same
has been stated by PW 3 in his examination. Thus, it is clear from the testimony of
PW 3 and PW 4/IO that the seizure memo and Form M 29 was prepared before the
tehrir/original rukka was handed over by PW4 IO to PW3 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 3. 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 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, theFIR No.: 235/2019 State versus Sarika Page No. 11 of 15
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:
“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.
FIR No.: 235/2019 State versus Sarika Page No. 12 of 15
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.: 235/2019 State versus Sarika Page No. 13 of 15
IV. No departure or the arrival entry of PW 3.
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 3, who was 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 theFIR No.: 235/2019 State versus Sarika Page No. 14 of 15
prosecution.”
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 Sarika W/o Sh. Sher Singh 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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