Delhi District Court
State vs Radha on 17 July, 2025
IN THE COURT OF REETIKA JAIN, JMFC-05 (NORTH-WEST)
ROHINI COURTS: DELHI
State vs. Radha
FIR NO. : 307/12
U/S : 33 of Delhi Excise Act
PS : Mangolpuri
JUDGMENT
a) Sl. No. of the case : 529306/16
b) Date of institution of the case : 16.01.2013
c) Date of commission of offence : 27.08.2012
d) Name of the complainant : Ct. Jitender Kumar
e) Name & address of the accused : Radha S/o Sh. Ramesh R/o
X 186 , Mangolpuri, Delhi
f) Offence charged with : S 33, Delhi Excise Act
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 17.07.2025
i) Final order : Acquitted
j) Date of Judgment : 17.07.2025
Digitally signed
REETIKA by REETIKA
JAIN
JAIN Date: 2025.07.17
15:14:09 +0530
FIR No. 307/12, PS Mangolpuri State Vs Radha Page 1 of 14
Digitally signed
REETIKA by REETIKA JAIN
JAIN Date: 2025.07.17
15:14:15 +0530
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Radha has been sent to face trial with the allegations that on 17.08.2012 at 05:22 P.M within the jurisdiction of PS Mangolpuri, accused was found in possession of illicit liquor recovered without any licence, authority or permit. Investigation was carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A charge u/s 33 Delhi Excise Act was framed against the accused to which she pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined five witnesses. ASI Pramod who had allegedly caught the accused red handed with illicit liquor during his patrolling duty along with Ct Jitender on 17.08.2012 at X -Block, Mangolpuri on the information received from secret informer and informed the PS Mangolpuri and witnessed the entire proceedings (i.e. preparation of seizure memo, arrest memo, preparation of rukka) carried out by IO on the spot, was examined as PW-1. Site plan was prepared in Ex.PW1/B. Illicit liquor was seized in Ex.PW1/A vide seizure memo. PW-2 ASI Mahavir Prasad is the MHCM who deposed qua entry no. 6209 in Ex.PW2/A(OSR) and RC no. 84/21/12 in ex.PW2/B (OSR). PW-3 HC Jitender was at the spot, whose statement was recorded in Ex.PW3/A, arrest of accused vide Ex.PW3/C, personal search vide Ex.PW3/B and disclosure statement was recorded in Ex.PW3/D. PW-4 SI Om Prakash is the IO who conducted seizure proceedings on receipt of DD no. 32PP in Ex A-4, prepared rukka in Ex.PW4/B, arrest and personal search of accused, filled form M 29 in Ex.PW4/A and other proceedings of FIR No. 307/12, PS Mangolpuri State Vs Radha Page 2 of 14 Digitally signed REETIKA by REETIKA JAIN JAIN Date: 2025.07.17 15:14:20 +0530 investigation.PW-5 HC Satender deposited sample in excise lab.
4. Apart from these documents, the accused admitted the genuineness of following document u/s 294 Cr.PC, without admitting the contents of the same. These document was exhibited as under -
i. FIR in Ex.A-1,
ii. Endorsement on rukka vide DD no. 40A in Ex.A-2,
iii. DD no. 30 PP in Ex.A-3,
iv. DD no. 32PP in Ex.A-4,
v. Report by chemical examiner in Ex.A-5.
5. Prosecution evidence was thereafter closed. Statement of accused was recorded u/s 313 Cr.PC, wherein all the incriminating evidence was put to the accused, to which she stated that she has been falsely implicated in this case. Further, the accused did not wish to lead defence evidence. Final Arguments heard. Case file perused.
6. Short point for determination before the court is as under -
" Whether on 17.08.2012 at about 05:22 P.m within the jurisdiction of PS Mangolpuri, accused was found in possession of gatta petties of illicit liquor , as per seizure memo without any licence or permit?"
7. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit alcohol without permit and submitted that accused be convicted of the offence charged.
Per contra, it is argued by the Ld. Counsel for the accused FIR No. 307/12, PS Mangolpuri State Vs Radha Page 3 of 14 Digitally signed by REETIKA REETIKA JAIN JAIN Date:
2025.07.17 15:14:25 +0530 that accused is completely innocent and recovery of case property has been falsely implanted upon him. It is further submitted by Ld. Counsel that non joinder of public witness despite availability cast shadow of doubt on prosecution story and IO had not taken any steps against so called independent witnesses, when they allegedly refused to join investigation. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed parcel cannot be ruled out as seal was not handed to the independent witness and at the time of production of case property in the court, it was not bearing case particulars.
APPRECIATION OF EVIDENCE
8. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt. On a perusal of the oral and documentary evidence/arguments led by the prosecution, the following observation emerge:
The learned Assistant Public Prosecutor for the state, relying upon Section 52 of the Delhi Excise Act, had argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of 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 FIR No. 307/12, PS Mangolpuri State Vs Radha Page 4 of 14 Digitally signed by REETIKA REETIKA JAIN JAIN Date:
2025.07.17 15:14:30 +0530 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.
(2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
The words "for the possession of which he is unable to account satisfactorily" used in Section 52 (1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
9. 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 same is discussed as FIR No. 307/12, PS Mangolpuri State Vs Radha Page 5 of 14 Digitally signed REETIKA by REETIKA JAIN JAIN Date: 2025.07.17 15:14:35 +0530 follows:
Non joinder of public persons:
9.1 Incident is stated to have happened at about 05:22 pm and it is evident from the testimony of PW-1 and PW-3 that accused was apprehended along-with the alleged illicit liquor at public place sitting on carton but still no public independent person was cited as a witness in this case. They clearly stated that people were present who were not even served notice for joining the investigation. What makes the version of prosecution more dubious is that the secret information was never reduced in writing. The recovery is alleged to have been done near a public spot as envisaged also from the site map, public persons were readily available at the time when the accused was apprehended but they have not been named even. Therefore, it is clear that sincere efforts were not 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. The failure to make conscious and serious efforts to give adequate notice to public witnesses is amplified in view of the statuary duty which is imposed u/s 100(4) Cr.P.C. to call upon two respectable persons of the locality to join the search. However, no such notice was served, thereby raising a doubt on the case of the prosecution. Reliance in this regard is placed on paragraph 6 of the judgment in Pawan Kumar v. Delhi Administration 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus FIR No. 307/12, PS Mangolpuri State Vs Radha Page 6 of 14 Digitally signed by REETIKA REETIKA JAIN JAIN Date:
2025.07.17 15:14:40 +0530 stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. 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 FIR No. 307/12, PS Mangolpuri State Vs Radha Page 7 of 14 Digitally signed by REETIKA REETIKA JAIN JAIN Date:
2025.07.17 15:14:44 +0530 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 rigour 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".
Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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".
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity FIR No. 307/12, PS Mangolpuri State Vs Radha Page 8 of 14 Digitally signed by REETIKA REETIKA Date:
JAIN JAIN 2025.07.17 15:14:50 +0530 to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied] 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 specifically when no photography of accused carrying cartons has been done. 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.
Absence of arrival and departure entries :
9.2 Moreover, the arrival and departure entry in the present case has not been proved in the present case which is a statutory duty on the police officials. It would be prudent to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II
- The following matters shall, amongst others, be entered:
(c) 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
FIR No. 307/12, PS Mangolpuri State Vs Radha Page 9 of 14 Digitally signed by REETIKA REETIKA JAIN JAIN Date: 2025.07.17 15:14:55 +0530
In the present case, the non-proof of departure and arrival entry assumes more significance in view of the fact that no public person was portrayed as a witness on behalf of the prosecution. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State"
1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly complied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the relevant DD entry as discussed above creates a reasonable doubt in the prosecution version and attributes oblique motive on to the actions of the members of the raiding party.
Seal handing over doubtful:
9.3 Further, as per evidence on record, the seal after use was not given to any independent public person but given to Ct Pramod. Even, no seal handing over memo is on record. 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 specifically when the samples produced in the court were found with broken seal. It is the duty of officer in charge of PS to ensure that case property is preserved and maintained till the time of disposal of matter by means of final orders.
(Rule 27.12 Punjab Police Rules). This is because once case property is found damaged/ unsealed which in the present case occurred, important link in the prosecution story goes missing and accused becomes entitled to acquittal. Thus, due to this lacuna, the standard cannot be said to be met FIR No. 307/12, PS Mangolpuri State Vs Radha Page 10 of 14 Digitally signed REETIKA by REETIKA JAIN JAIN Date: 2025.07.17 15:14:59 +0530 beyond reasonable doubt.
At the end, submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence as the factum of recovery of alleged liquor from accused becomes doubtful as chain of custody is broken.
The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
It is also relevant to note that when the case property was produced before court, it was observed that seal on it was missing. In a case of Excise Act, the identity of the case property forms the bedrock of the indictment. Once the same is shrouded in serious suspicion, the case of prosecution cannot be built upon the testimony of formal official witnesses in the absence of any independent public witnesses.
FIR No. 307/12, PS Mangolpuri State Vs Radha Page 11 of 14 Digitally signed REETIKA by REETIKA JAIN JAIN Date: 2025.07.17 15:15:04 +0530 Ante timed seizure memo : 9.4 Interestingly, the seizure memo and site plan contains the FIR
number which makes it apparent that these were prepared prior to registration of FIR. The same is fatal for the case of the prosecution and reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as under:
"... 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. 36 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. 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."
In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the site plan and seizure memo. The same leads to inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
Non offering of police officials for their own search:
9.5 Moreover, anywhere in the rukka, it is not mentioned that after the apprehension of the accused, but before taking the formal/casual search of FIR No. 307/12, PS Mangolpuri State Vs Radha Page 12 of 14 Digitally signed by REETIKA REETIKA JAIN JAIN Date:
2025.07.17 15:15:09 +0530 the accused, the police officials including the members of the raiding party, any of them had offered their own search to the accused , meaning thereby, that it has not been proved on record that the said police officials, who had effected the apprehension of the accused had offered themselves for search by the accused or to any other member of public before conducting the search of the accused so as to obviate the possibility of the planting of the case property on to the accused. At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa" wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 :
(1969 Cri. L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC). Therefore, in view of the discussions made herein above and the facts and FIR No. 307/12, PS Mangolpuri State Vs Radha Page 13 of 14 circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Radha stands acquitted of the offence under section 33 of Delhi Excise Act, he has been charged with. Case property be destroyed after the expiry of the period of appeal.
Ordered accordingly. Bail bonds filed by the accused earlier stands extended towards compliance of section 437A Cr.PC and they shall remain in force for the period of six months from today.
File be consigned to record room.
It is certified that this judgment contains 14 pages and every page bears the signature of undersigned.
Digitally
Announced in open court REETIKA
signed by
REETIKA JAIN
Date:
On 17.07.2025 JAIN 2025.07.17
15:15:15
+0530
Reetika Jain
JMFC -05, North West
Rohini Courts, Delhi/17.07.2025
FIR No. 307/12, PS Mangolpuri State Vs Radha Page 14 of 14