Delhi District Court
State vs Rajanti on 17 March, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE : SOUTH EAST DISTRICT : SAKET
COURTS : NEW DELHI
DLSE020041792022
JUDGMENT
STATE VS. RAJANTI FIR No. : 39/2020 U/s 33 DELHI EXCISE ACT PS : BADARPUR A. CNR NO. : DLSE02-004179-2022 B. CIS No. of the Case : 1955/2022 C. Date of Institution : 07.03.2022 D. Date of Commission of : 29.01.2020 Offence E. Name of the complainant : Ct. Manish F. Name of the Accused : Rajanti W/o Sh. Jagram persons, his Parentage & R/o H.No. 355, B-54, Gali Addresses No. 39, A/1, Molarband Extension, Badarpur, New Delhi.
G. Offence complained of : U/s 33 of Delhi Excise Act.
H. Plea of the Accused : Pleaded not guilty and claimed
trial
I. Order reserved on : Not reserved
J. Final order : Acquittal
K. Date of such order : 17.03.2025
Brief Statement of Reasons for Decision of the Case:
1. The present FIR under Section 33 of Delhi Excise Act was registered on a complaint filed by the complainant against Digitally signed State Vs. Rajanti by VIVEK BENIWAL FIR No. 39/2020, PS: Badarpur VIVEK Date: Page no. 1 of 12 BENIWAL 2025.03.20 17:08:10 +0530 accused Rajanti alleging that on 29.01.2020 at about 2.00 PM in front of Aap Ki Khatir Restraurant, 2nd 60 futa Road, Molarband Extension, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, she was found in possession of white colour plastic katta (bag) which found containing 100 quarter bottles of illicit liquor, each 180 ml, brand name Asli Santra Masaledar Desi Sharab, for sale in Haryana only, in violation of Rule 20 of Delhi Excise Rules 2010, for transport and sale purpose. Matter was reported to the police.
2. FIR was registered and matter has been investigated by IO/HC Sunil Kumar who filed the main charge-sheet against the accused Rajanti upon which cognizance were taken.
3. Accused was summoned to appear before the Court.
Accused person put her appearance before the Court. Copy of charge sheet under section 207 Cr.P.C. was supplied to the accused.
4. Charge was framed vide order dated 26.07.2022 for the offence punishable u/s 33 of Delhi Excise Act against the accused to which she pleaded not guilty and claimed trial.
5. The prosecution, in support of its case, has examined four witnesses.
6. PW-1 HC Manish Kumar deposed that on 29.01.2020, he was on patrolling duty along with W/Ct. Alish and were on Digitally State Vs. Rajanti VIVEK signed by VIVEK BENIWAL FIR No. 39/2020, PS: Badarpur BENIWAL Date:
2025.03.20 17:08:16 Page no. 2 of 12 +0530 patrolling at 60 foota road. At about 2.00 pm, when they reached near Aap ki Khatir restaurant, they saw that one lady carrying a white plastic katta on her head and was going towards the Bright Way School. On suspicion, he along W/CT Alish managed to stop the said woman and made some inquiry. On inquiry, the said woman did not give any feasible answers and PW1 checked the said plastic katta and found that there were illicit liquor inside. After that, he informed the information to the DO regarding the said illicit liquor and after sometime, HC Dinesh Kumar reached at the spot. PW1 handed over the illicit liquor to IO and on interrogation, the woman disclosed her name as Rajanti. IO counted the said illicit liquor and it was total 100 quarter bottles with the make of 'Santra Masaledar Deshi Sharab' for sale in Haryana. He further deposed that IO took one quarter bottle as a sample and kept the remaining 99 quarter bottles in the said plastic katta and tied the said katta with the help of cloth and sealed the same with the seal of DK. After that, IO recorded statement of PW1 Ex.PW1/A, upon which IO prepared rukka and got the present case registered through PW1. IO prepared the site plan Ex.PW1/B and also prepared the seizure memo of the illicit liquor vide memo Ex.PW1/C. IO also recorded the disclosure statement of the accused Ex.PW1/D. After that PW1 along with the W/Ct. Alish and the IO along with the case property came back at the P.S. where IO deposited the case property in the Malkhana and recorded statement under Section 161 Cr.P.C. This witness correctly identified the sample quarter bottle Ex.P1, destruction order Ex.P2 and accused in the Court. This witness was cross examined and discharged.Digitally signed
State Vs. Rajanti by VIVEK BENIWAL VIVEK Date:
FIR No. 39/2020, PS: Badarpur BENIWAL 2025.03.20 17:08:21 Page no. 3 of 12 +0530
7. PW-2 W/HC. Alish Tritwal deposed on the lines of PW1 . She was also cross examined and discharged.
8. PW-3 HC Manish Kumar deposed that on 29.01.2020, he received information at PS regarding the recovery of illicit liquor at in front off Aap Ki Khatir restaurant, 2 nd 60 Futa road, Molarband Extension, Badarpur New Delhi. Thereafter he reached the spot and met HC Manish and W/HC Alish. HC Manish Kumar handed over the illicit liquor to PW3 and custody of the woman apprehended and on interrogation the woman disclosed her name as Rajanti. PW3 counted the said illicit liquor and it was total 100 quarter bottles with the make of "Santra Masaledar Deshi Sharab" for sale in Haryana. PW3 took one quarter bottle as a sample and kept the remaining 99 quarter bottles in the said plastic katta and tied the said katta with the help of cloth and sealed the same with the seal of "DK". After that, PW3 recorded the statement of HC Manish Kumar Ex.PW1/A and on the said complaint, he prepared the rukka Ex. PW3/A and gave the same to HC Manish Kumar for registration of the FIR which HC Manish Kumar took to the PS for the registration of the FIR. After sometime, HC Manish Kumar came back at the spot and handed over the copy of the FIR to the PW3. PW3 prepared the site plan Ex.PW1/B and also prepared the seizure memo of the illicit liquor vide memo Ex.PW1/C. PW3 recorded the disclosure statement of the accused Ex.PW1/D. After that PW3 along-with HC Manish Kumar and W/Ct. Alish along-with case property came back at the PS, where PW3 deposited the case property in the Malkhana. Thereafter PW3 State Vs. Rajanti Digitally signed by VIVEK BENIWAL VIVEK FIR No. 39/2020, PS: Badarpur Date:
BENIWAL 2025.03.20 Page no. 4 of 12
17:08:26
+0530
recorded statement of HC Manish Kumar and W/Ct. Alish under Section 161 Cr.P.C. and statement of other relevant witnesses. Subsequently PW3 had deposited the case property in the Excise Laboratory and received the result and thereafter, he got transfered from the PS and handed over the case file to MHCR. This witness correctly identified the one sample quarter bottles Ex.P1 and destruction order Ex.P2.
9. PW-4 HC Sunil Kumar deposed that on 10.03.2021, he was marked the further investigation of the case. He collected the file from MHCR. He compiled the documents and filed the charge sheet of the present case.
10. As per proceedings dated 26.07.2022, the accused has admitted the genuineness of FIR No. 39/20, P.S. Badarpur Ex.A- 1, certificate under Section 65 B of Evidence Act Ex.A2, DD No. 19A dated 29.01.2020 Ex.A3 and Chemical Examiner Report No. SZD005553 dated 15.06.2020 Ex.A4.
11. No other witness was examined by the prosecution and hence, PE was closed.
12. Thereafter, statement u/s 313 Cr.P.C. of the accused was recorded, wherein all the incriminating material that appeared in evidence against her were put to her to which she stated that she did not commit any offence and has been falsely implicated. Accused opted not to lead defence evidence.
Digitally
signed by
VIVEK
State Vs. Rajanti VIVEK
BENIWAL
BENIWAL
Date:
FIR No. 39/2020, PS: Badarpur 2025.03.20
17:08:32
+0530
Page no. 5 of 12
13. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
14. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
15. The accused herein has been charged for an offence punishable under section 33, the Delhi Excise Act. The Section reads as under:
"Section 33- Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or work; any manufactory or warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than today or tan;
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor Digitally signed by VIVEK VIVEK BENIWAL State Vs. Rajanti BENIWAL Date:
2025.03.20 FIR No. 39/2020, PS: Badarpur 17:08:37 +0530 Page no. 6 of 12
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees."
16. The case of the prosecution is that on the fateful day the accused was found in possession of illicit liquor without any permit or license. In order to bring home the charge against the accused, the prosecution is required to prove beyond reasonable doubt the recovery of illicit liquor from the possession of the accused.
17. Ld. APP for the state has relied upon Section 52 of the Delhi Excise Act. It has been argued that where an 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.
18. I have considered the submission. However, I am of the opinion that this is not the correct interpretation of the law. 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 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.Digitally signed
State Vs. Rajanti VIVEK by VIVEK BENIWAL FIR No. 39/2020, PS: Badarpur Date: BENIWAL 2025.03.20 17:08:43 Page no. 7 of 12 +0530
(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".
19. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly show that it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused before the presumption under the aforesaid provision is being raised against 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. Now it has to be seen whether the prosecution has established beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor.
20. In the present case, the entire story of the prosecution is based on the fact of alleged recovery of illicit liquor in front of Aap Ki Khatir Restrauant, 2nd 60 futa Road, Molarband Extension, Badarpur. PW2 Retired SI Mahender Singh has stated in his cross-examination that he made efforts from the public to join the investigation but they did not co-operate with the investigation. The IO even did not note down their names and addresses.
21. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by Digitally signed by VIVEK BENIWAL VIVEK State Vs. Rajanti Date:
BENIWAL 2025.03.20 17:08:49 FIR No. 39/2020, PS: Badarpur +0530 Page no. 8 of 12 police. Section 100(4) of the Cr.P.C, also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation.
22. Thus, it is shown on record that the complainant and the IO did not make any genuine efforts in the present case to get independent public witness joined the search proceedings despite their availability. No notice or warning is shown to have been given to public persons who had allegedly refused to join search proceedings, which also creates doubt on the story of the prosecution. Non-availability of a public witness is one thing and not joining public person as a witness despite their availability is altogether different thing. In case a public person is available, it is duty of the police official to make sincere efforts to persuade such person to join the legal proceedings to become a witness. However, in the present case no such efforts are shown to be made by the police officials. In the case titled as Nank Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, 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.'' Digitally signed by VIVEK State Vs. Rajanti VIVEK BENIWAL Date: BENIWAL 2025.03.20 FIR No. 39/2020, PS: Badarpur 17:08:55 Page no. 9 of 12 +0530
23. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution.
24. This Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
25. Further, the PW3 has deposed that he had seized the liquor bottles and the sample bottles vide memo Ex. PW-1/C. Thereafter, he prepared the rukka Ex.PW3/A. It is, therefore, clear that the seizure memo Ex PW 1/C was prepared at the spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of memo Ex. PW-1/C. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot. Thus, ordinarily, the FIR number should not find mention in the memo, which came into existence before registration of the FIR. However, interestingly, the memo Ex. PW-2/A bears the FIR number and case details. Hon'ble High Court of Delhi in Pawan Kumar Vs. The Delhi State Vs. Rajanti VIVEK Digitally signed by VIVEK BENIWAL FIR No. 39/2020, PS: Badarpur BENIWAL Date:
2025.03.20 17:09:01 +0530 Page no. 10 of 12 Administration, 1989 Cri. L.J. 127, has 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. 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."
26. In Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi has observed:
"... 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 State v. Om Prakash 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 State Vs. Rajanti Digitally signed FIR No. 39/2020, PS: Badarpur VIVEK by VIVEK BENIWAL Page no. 11 of 12 BENIWAL Date:
2025.03.20 17:09:07 +0530 prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution.
27. In the light of the discussion hereinabove, I am of the opinion that the facts that no independent witness was cited or examined, possibility of misuse of seal has not been ruled out, the addition of FIR number and case particulars on the seizure memos raiding a doubt, and no DD entry record of the presence of the members of raiding party / police officials on the spot has been proved, are able to raise clouds of reasonable suspicion over the prosecution story. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
28. Thus, in view of the foregoing analysis, I hold that the benefit of doubt ought to be given to the accused. The accused is hereby acquitted of the offence punishable under Section 33 of the Delhi Excise Act.
29. Case property be confiscated to State as per rules.
Accused be set at liberty.
Digitally
Dictated and announced signed by
VIVEK
in the open Court on 17.03.2025. VIVEK BENIWAL BENIWAL Date:
2025.03.20 17:09:16 (VIVEK BENIWAL) +0530 ACJM (SOUTH EAST):
SAKET COURTS:NEW DELHI State Vs. Rajanti FIR No. 39/2020, PS: Badarpur Page no. 12 of 12