Delhi District Court
State vs Soniya on 8 August, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
PRESIDED BY: MS. AKRITI MAHENDRU
Cr.C. No. 5301/2023
FIR No.473/2022
PS: Ranjit Nagar
State vs. Soniya
CNR No. DLWT02- 009097-2023
JUDGMENT
a) ID. No. of the case : 5301/2023
b) Date of Commission
: 08.06.2022
of offence
c) Name of the : Ct. Sandeep
Complainant
Soniya W/o Sh. Bunty R/o
d) Name of the Accused,
H. No. TC 102, Pandav
his parentage and :
Nagar, Delhi, Ranjit Nagar,
address
Central, Delhi.
e) Offences complained 33 (f) of Delhi Excise Act,
:
of 2009
f) Plea of the Accused : Pleaded not guilty
g) Final Order. : Acquittal
h) Date of such order. : 08.08.2025
i) Date of institution. : 23.05.2023
State Vs. Soniya FIR No. 473/2022 Page No. 1 of 23
Digitally signed
by AKRITI
MAHENDRU
AKRITI
Date:
MAHENDRU 2025.08.08
16:36:43
+0530
1. Vide this judgment this court shall dispose of the present case FIR registered under Section 33 (f) of the Delhi Excise Act, 2009 at PS, Patel Nagar.
2. Shorn off unnecessary details, the case of the prosecution is that on 08.06.2022 HC Sandeep (hereinafter referred to as the Complainant) was on Patrolling Duty at Beat No. 9, Pandav Nagar, Delhi. At about 2:15 p.m., one secret informer met him and informed that illicit liquor was being sold outside a house situated at Gali No. 4, TC Camp, Pandav Nagar, Delhi. On receipt of information, he went to the spot and there he saw that one lady standing outside H.No. TC-102 was shifting cartons of illicit liquor from the gali to her house. When he asked the lady about the cartons she panicked and was unable to give any satisfactory reply. The complainant opened the cartons and found that there were total 22 cartons containing illicit liquor out of which 14 cartons contained bottles of 'Race 7, For sale in Haryana only' and 8 cartons contained bottles of of 'Motta Masaledar desi sharab, for sale in Haryana'. He called the duty officer at PS and after sometime, ASI Virender along with W/Ct. Sona reached at the spot. IO made enquiries from the accused and upon enquiry, she disclosed her name as Soniya (hereinafter referred to as the accused). Two bottles were taken out as sample from each carton. The case property was seized and was sealed with the seal of 'VK'. Thereafter, accused was arrested. FIR was registered and matter was investigated into. Upon completion of investigation, a final report in the State Vs. Soniya FIR No. 473/2022 Page No. 2 of 23 Digitally signed by AKRITI MAHENDRU AKRITI MAHENDRU Date:
2025.08.08 16:36:49 +0530 form of chargesheet under Section 173 of the Code of Criminal Procedure, 1973 was forwarded to this Court arraying Soniya as Accused.
3. After taking cognizance of the offences complained of in the instant case FIR, the accused was summoned vide order dated 23.05.2023. Pursuant to her appearance, copy of chargesheet along with accompanying documents was supplied to the accused in compliance of the provisions of Section 207 of the Code of Criminal Procedure, 1973. Subsequently, upon hearing the prosecution as well as the defence and after careful perusal of the material available on record, charge for offence punishable under Section 33 (f) of the Delhi Excise Act was framed against the accused on 03.10.2023 to which she pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, prosecution cited 08 witnesses in its favour.
5. HC Sandeep was examined as PW1 by the prosecution. He deposed that on 08.06.2022, he was posted as Constable at PS- Ranjit Nagar. On that day, he was on Beat Patrolling Duty at Beat No. 9, Pandav Nagar. At about 2:15 PM, one secret informer met him and informed him that one lady was selling illicit liquor at Gali No. 4, TC Camp, Pandav Nagar and she could be apprehended, if raid is conducted. On receipt of information he went to Gali No. 4 and saw that one lady was taking cartons of illicit liquor inside her house. He made enquiries from her but she failed to give any satisfactory State Vs. Soniya FIR No. 473/2022 Page No. 3 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:36:53 +0530 reply. Thereafter, he called the Duty Officer at PS to send IO. After sometime, ASI Virender along with W/Ct. Sona reached at the spot. IO made enquiries from the accused and upon enquiry, she disclosed her name as 'Soniya'. On checking, total 22 cartons of illicit liquor were recovered from the possession of the accused, out of which 08 cartons contained bottles of 'Motta Masaledar Desi Sharab' 'For Sale in Haryana Only' and 14 cartons contained bottles of of 'Race-7' for 'Sale in Haryana Only'. IO took out two sample bottles from each carton, kept them in a pullanda and sealed the pullanda with the seal of 'VK'. Thereafter, sample bottles and cartons were seized vide seizure memo Ex.PW1/A. He further deposed that his statement was recorded by the IO which was Ex.PW1/B. Thereafter, IO prepared a tehrir on his complaint and handed over the same to him for registration of FIR. Subsequently, he left the spot for police station. After registration of FIR, he returned to the spot along with copy of FIR and original tehrir and handed over the same to IO. Thereafter, IO prepared the site plan Ex.PW1/C at his instance and recorded the disclosure statement of accused Ex.PW1/D. Subsequently, accused was served notice under Section 41(A) Cr. PC and was bound down by the IO. He further deposed that they along with case property returned to the PS. His statement was recorded by the IO and he was discharged. PW1 stated that he could identify the case property, if the same was shown to him. MHC(M) produced the original order of destruction along with report regarding destruction of the case property, copy of the same was Ex.PW1/E (OSR). MHC(M) had also produced photographs of the case property before destruction, same were State Vs. Soniya FIR No. 473/2022 Page No. 4 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:36:58 +0530 Ex.P1 (OSR). MHC(M) had also produced one sample bottle of ' Motta Masaledar Desi Sharab' for 'Sale in Haryana Only' and one bottle of 'Race-7' for 'Sale in Haryana Only' duly sealed with the seal of 'RTNGR- II'. PW1 correctly identified the same and the same were exhibited as Ex.P2 and Ex.P3 respectively. PW1 correctly identified the accused during her dock identification before the Court.
5.1. PW1 was cross examined at length by learned counsel for the accused. During the course of his cross-examination PW1 deposed that he left the PS for patrolling duty at about 10:00 AM on his personal motorcycle. He failed to remember the DD no. regarding his departure from PS. He admitted that the spot was a residential area and public persons were passing by the spot. He claimed that IO had requested the neighbours and public persons to join the investigation but no one agreed. He conceded that no written notice was served upon the neighbours and passers-by, who had refused to join the investigation. He further deposed that no videography/photography of the spot was conducted by the IO. He stated that the IO had reached the spot at about 2:30 PM- 2:40 PM. He further stated that the IO had recorded his statement, thereafter, IO prepared the site plan before sending the rukka. He further stated that he left the spot with rukka for registration of FIR at about 3:00 PM and returned to the spot at about 4:30 PM after registration of FIR. He further stated that the IO had prepared the seizure memo from top to bottom in one go and Seizure memo Ex. PW1/A was prepared by the IO at a nearby Cyber Cafe, whose name he State Vs. Soniya FIR No. 473/2022 Page No. 5 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:02 +0530 was unable to recall. He further stated that the IO did not ask the owner of the Cyber Cafe to join the proceedings. He stated that seizure memo Ex. PW1/A did not contain the FIR No. He further stated that W/Ct. Sona was present at the spot when site plan was prepared. He further deposed that the case property was carried from the spot on a e-rickshaw, however, he could not tell the name, address and registration number of the e-rickshaw driver. He further deposed that he returned the seal to the IO on the same day and no returning/handing over memo was prepared regarding return of the seal.
PW1 denied the suggestions put forth by the Ld. Counsel for accused namely;- that nothing was recovered from the possession of accused or that recovery was planted upon her; or that accused had been falsely implicated in the present case; or that accused was not present at the spot at the time of incident; or that writing work was done while sitting in the PS; or that he never visited the spot; or that IO obtained his signatures on the blank papers at PS; or that he was deposing falsely.
6. HC Harendra was examined as PW2 by the prosecution. He deposed that he was posted as MHC(M) at PS-Ranjit Nagar. He produced Register No. 19 of the year 2022 and had shown the Mud No. 1452. Copy of the same was Ex.PW2/A (OSR). PW2 had also produced Register No. 21 from 32/21/22 to 129/21/22 and shown the RC No. 98/21/22. Copy of the same was Ex.PW2/B (OSR).
State Vs. Soniya FIR No. 473/2022 Page No. 6 of 23 Digitally signed by AKRITI MAHENDRU AKRITI MAHENDRU Date:
2025.08.08 16:37:08 +0530
7. PW2 was cross examined pointedly by learned counsel for the accused. During the course of his cross-examination PW2 admitted that the photographs Ex.P1 did not mention the date and time.
8. Ct. Swdwmsa was examined as PW3 by the prosecution. He deposed that on 25.07.2022 he was posted as Constable PS Ranjit Nagar. On that day he took the 22 sealed sample bottles from the MHC(M) alongwith Form M-29 and deposited the same at Excise Laboratory ITO vide RC No. 98/21/22. Witness had correctly identify his signature in RC No. 98/21/22 which was already Ex.PW2/B. 8.1. PW3 was not cross examined on behalf of the accused despite opportunity.
9. Ct. Sona was examined as PW4 by the prosecution. She deposed that on 08.06.2022, she was posted as Constable at PS Ranjit Nagar. On that day, IO ASI Virender Singh joined her in the investigation and they went to Gali No. 4, TC Camp, Pandav Nagar and met Ct. Sandeep there along with the accused. HC Sandeep handed over the recovered cartons of illicit liquor to the IO and custody of the accused to her. IO made enquiries from the accused and on enquiry, she disclosed her name as "Soniya". Upon checking by the IO, total 22 cartons of illicit liquor were recovered, out of which 08 cartons were of 'Motta Masaledar Desi Sharab' for 'Sale in Haryana Only' and 14 cartons were of 'Race-7' for 'Sale in Haryana Only. IO took out one State Vs. Soniya FIR No. 473/2022 Page No. 7 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:12 +0530 sample of each brand and sealed the same with the seal of VK' after preparation of pullanda. She further deposed that all the cartons were sealed with the seal of VK and after preparation of pullanda, sample bottles and cartons were seized vide seizure memo Ex.PW1/A. She further deposed that statement of Ct. Sandeep was recorded by IO and tehrir was prepared, which was handed over to Ct. Sandeep for registration of FIR. Thereafter, Ct. Sandeep left the spot for PS and returned after registration of FIR. She further deposed that IO prepared the site plan and recorded the disclosure statement of the accused. Accused was served notice under Section 41(A) Cr. PC and she was bound down by the IO. She further deposed that they along with case property returned to PS. Her statement was recorded by the IO and she was discharged. PW4 stated that she could identify the case property, if it was shown to her. Report of destruction of the case property was already Ex.PW1/E (OSR), photographs of the case property before destruction were Ex. P-1 (OSR) and Sample bottles were Ex. P-2 and Ex.P-3.
10. PW4 was cross examined at length by learned counsel for the accused. During cross-examination by Ld. Counsel for accused, PW4 stated that she left the PS with IO at about 01.15 PM on personal motorcycle vide DD No. 39A. She stated that the motorcycle number was not mentioned in the said DD number. PW4 conceded that the spot was a residential area and public persons were passing by from the spot. He further stated that Ct.
Sandeep went to the PS for registration of FIR at about 2.00 PM and State Vs. Soniya FIR No. 473/2022 Page No. 8 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:16 +0530 returned after 10-15 minutes. She deposed that the IO prepared the site plan before sending the rukka to PS. She failed to remember the exact time when she left the spot finally. She further deposed that the IO had requested the neighbours and public persons to join the investigation but none agreed however, no written notice was served upon the neighbours and passerbys, who had refused to join the investigation. She further deposed that no videography/photography of the spot was conducted by the IO. She further stated that the IO had recorded her statement and before sending rukka, IO prepared the site plan. She further deposed that the case property was taken to the PS in e-rickshaw by Ct. Sandeep and she went to the PS on bike with the IO.
PW4 denied the suggestions put forth by Ld. Counsel for accused namely;- that nothing was recovered from the possession of accused; or that recovery was planted upon her; or that accused was falsely implicated in the present case; or that accused was not present at the spot at the time of incident; or that writing work was done while sitting in the PS; or that she never visited the spot; or that IO obtained her signature on the blank papers at PS; or that she was deposing falsely.
11. ASI Virender Kumar was examined as PW5 by the prosecution. He deposed that on 08.06.2022, he was posted as ASI at PS-Ranjit Nagar. On that day, he received DD No. 39A, he along with Ct. Sona went to Gali No. 4, TC Camp, Pandav Nagar and met Ct. Sandeep there along with the accused Sonia. HC Sandeep handed over the recovered cartons of illicit State Vs. Soniya FIR No. 473/2022 Page No. 9 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:20 +0530 liquor to him and custody of the accused to Ct. Sona. He made enquiries from the accused and upon enquiry, she disclosed her name as 'Soniya'. He requested some public persons to join the recovery proceedings but none had joined. Due to paucity of time, he could not serve any notice upon them. He stated that upon checking, total 22 cartons of illicit liquor were recovered out of which 08 cartons were of 'Motta Masaledar Desi Sharab' for 'Sale in Haryana Only' and 14 cartons were of 'Race-7' for 'Sale in Haryana Only'. He took out one sample of each brand and sealed with the seal of 'VK' after preparation of pullanda. He further deposed that all the cartons were sealed with the seal of 'VK and after preparation of pullanda, sample bottles and cartons were seized vide seizure memo Ex. PW1/A. He further stated that he also filled form M-29. He further deposed that statement of Ct. Sandeep was recorded by him and tehrir was prepared, which was handed over to Ct. Sandeep for registration of FIR. He further deposed that Ct. Sandeep left the spot for PS and returned after registration of FIR. He further deposed that he prepared the site plan Ex. PW1/C and recorded the disclosure statement of accused Ex.PW1/D. He further stated that the Accused was served notice under Section 41(A) Cr. PC and she was bound down by him. He further deposed that they along with case property returned to PS and he recorded the statement of the witnesses. PW5 further stated that during investigation, he sent the sample bottles to Excise laboratory through Ct. Swdwmsa and after obtaining the report, he tagged the same with the case file. He further deposed that he filed the charge-sheet before the court. PW5 stated that he could identify the case property, if State Vs. Soniya FIR No. 473/2022 Page No. 10 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:26 +0530 shown to him. Report of destruction of the case property was already Ex.PW1/E (OSR), Photographs of the case property before destruction were Ex.P1 (OSR) and Sample bottles were Ex. P2 and P3.
12. PW5 was cross examined at length by learned counsel for the accused. During the course of cross-examination by Ld. Counsel for accused, PW5 stated that he left the PS at 1:20 PM with Ct. Sona on his personal motorcycle vide DD No. 39A. The motorcycle number was not mentioned in the said DD number. He further stated that the distance between the PS and spot was about 800-900 meter. He admitted that the spot was a residential area and public persons were passing by from the spot. He further stated that Ct. Sandeep went to the PS for registration of FIR at about 2.40 PM and returned back after one hour. He further deposed that Ct.
Sona was with him when Ct. Sandeep left the spot for registration of the FIR and when he returned back. He further stated that he had prepared the site plan after registration of FIR. He admitted that Ct. Sona was present at the time of preparation of site plan. He further deposed that he had prepared only seizure memo before sending the rukka. He further deposed that he had handed over the seal to Ct. Sandeep after use and he got the same on the next day from Malkhana. He conceded that no handing over or return memo of the seal was prepared by him. He further deposed that he had not made any alteration or addition on the documents which he had prepared earlier, before sending the rukka. He failed to remember when he had finally left the spot. He further stated that case property was taken to the PS in private State Vs. Soniya FIR No. 473/2022 Page No. 11 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:30 +0530 tempo with Ct. Sandeep however, registration number of said tempo was not mentioned. He further stated that the case property was carried in the said tempo in the presence of Ct. Sona.
He denied the suggestions put forth by Ld. Counsel for accused namely:- that nothing was recovered from the possession of accused; or that recovery was planted upon her; or that accused was falsely implicated in the present case; or that accused was not present at the spot at the time of incident; or that writing work was done while sitting in the PS; or that he never visited the spot or that IO obtained his signatures on the blank papers at PS; or that he was deposing falsely.
13. On 03.10.2023, accused admitted the genuineness of FIR bearing No. 473/2022 dated 08.06.2022, PS- Ranjit Nagar, Ex. A1, Certificate u/s 65B of Indian Evidence Act, Ex. A2, Chemical Examination report No. SZD009907-SZD009928 dated 17.11.2022 i.e. Ex.A3 and DD no. 39-A dated 08.06.2022 i.e. Ex.A4. Consequently, the examination of PW W/ASI Mukesh and Rajesh Joshi/Deputy Chemical Examiner was dispensed with.
14. Thereafter PE was closed vide order dated 07.01.2025 and accused was examined in the exercise of power under section 313 of the Code of Criminal Procedure, 1973 on 24.04.2025. Accused pleaded innocence and denied the allegations against him. He claimed that he had been falsely implicated in the present case and nothing was recovered from his possession.
State Vs. Soniya FIR No. 473/2022 Page No. 12 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
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15. Final arguments were addressed on behalf of the accused as well as by the Ld. APP for the State.
16. During the course of final arguments, it was submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts. All the ingredients of offence punishable under section 33 (f) of the Delhi Excise Act, 2009 are made out and in view of the presumption under Section 52 of the Act the accused ought to be convicted.
17. On the other hand, Ld. Counsel for accused argued that the prosecution has not been able to establish its case beyond reasonable doubt therefore, the benefit of doubt must inure to the Accused. It was further argued on behalf of the Accused that she has been falsely implicated in the present case and nothing was recovered from her possession. The illicit liquor was planted upon the Accused which is apparent from the fact no public witness has been examined by the prosecution to prove the fact of recovery from the possession of the Accused. He pointed out the contradictions in the testimony of the witnesses to argue that prosecution has failed to prove its case beyond reasonable doubt.
18. Before sifting and weighing the competing submission in the adumbral of evidence tendered on record, it is deemed germane to reproduce the applicable provisions of the Delhi Excise Act, 2009, namely:
State Vs. Soniya FIR No. 473/2022 Page No. 13 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:39 +0530 (Section 33)
33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) 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 works any manufactory or warehouse;
(c) bottles any liquor for 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 toddy or tari;
(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;
(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.
52. 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.
State Vs. Soniya FIR No. 473/2022 Page No. 14 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:43 +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. Now this court shall proceed to deal with the pleas raised by the Accused. The first plea raised by the Accused is that no illicit liquor bottles were recovered from her possession and she has been falsely implicated in the present case which is evident from the fact that no independent witness was examined by the prosecution to establish her guilt. The allegations against the accused, as per the prosecution version, are that she was found in possession of liquor bottles without any permit or license. In order to prove the charge against the Accused the burden is upon the prosecution to prove the fact of recovery of the illicit liquor bottles from the possession of the Accused. To discharge the aforementioned burden, prosecution has essentially relied upon the presumption laid down in section 52 of the Delhi Excise Act, 2009 and on the strength of the same it has been averred that once the charge under section 33(f) is framed against the Accused the presumption would come into play and the burden of proving the contrary would be shifted upon the Accused. Perusal of section 52 reveals that the presumption with respect to offence under section 33 can be drawn only if the Accused is unable to satisfactorily account for the possession of the intoxicant, still, utensil, implement or apparatus (liquor bottles in the instant case). A prerequisite for raising the presumption against the Accused is the successful establishment of the fact of recovery of the alleged articles from State Vs. Soniya FIR No. 473/2022 Page No. 15 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:48 +0530 the possession of the Accused. It is imperative for the prosecution to prove the fact of recovery of the articles from the possession of the Accused before it can claim the benefit of the presumption. Therefore, the onus is still on the prosecution to prove that the illicit liquor was in fact recovered from the possession of the accused.
20. For establishing the factum of recovery, the prosecution examined five witnesses. The recovery was effected by PW1 later on the Accused was handed over to PW4 and seized articles were handed over to the IO/PW5. All the witnesses examined by the prosecution during the course of trial, including the complainant, are police witnesses. No public witness was admittedly joined by the police at the time of recovery. PW1, PW4 and PW5 had all stated in their testimony that public witnesses were not made a part of the investigation despite availability. During the course of their examination the aforementioned witnesses had admitted that the spot was a crowded place and many public persons were available there but no public person was joined as a witness, also no written notice was served upon any public person who refused to join the investigation. It was deposed by PW5 in his examination in chief that he had asked passers-by to join the investigation however, they all refused and no notice was served upon them due to paucity of time. During the course of their cross examination both PW1 & PW4 admitted that they did not note down the names and addresses of the public persons who refused to join the investigation. There was consistency in the statement of all the material witnesses regarding non State Vs. Soniya FIR No. 473/2022 Page No. 16 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:37:53 +0530 joinder of any public person as witness either during the recovery or during the investigation. It is not the case of the prosecution that there were no public persons available at the spot who could be joined as witnesses rather all the material witnesses have stated that public person were available there. No notice was served upon the public persons under section 160 CrPC who refused to join the investigation. No reason has been given by any of the material witnesses for non-joinder of any public person as witnesses, either at the time of recovery or at the time of investigation. No plausible explanation has come forth for non-joinder of public persons as witnesses or for non-service of notice u/s 160 CrPC upon them for refusal.
21. The recovery witness examined by the prosecution in the present case are police witnesses that is PW1, PW4 and PW5 who are interested in the success of the prosecution case therefore, the possibility of them being guided by extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO or the complainant of the case to join the public witness. The non-joining of the public witness at the time of alleged recovery of the article raises doubts on the story of the prosecution.
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2025.08.08 16:37:59 +0530 In this context the observations of the Hon'ble High Court of Delhi in the celebrated judgment of Pawan Kumar v. Delhi Administration reported as 1989 Cri.LJ 127 spring to mind which reads as under:-
"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 have 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 a 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."
22. The aforementioned observations of the Hon'ble high court of Delhi were reiterated in the case of Anoop Joshi V/s State, reported as 1992 (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 State Vs. Soniya FIR No. 473/2022 Page No. 18 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:38:05 +0530 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 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 rigours 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''.
23. The second plea raised by the Accused is three pronged namely;- a) that no departure or arrival entry record has been filed to show that PW1 was on patrolling duty on the said date, b) that no handing over memo was prepared while handing over the seal, c) FIR number has been mentioned on the documents which were purportedly prepared before registration of FIR, thereby raising further doubt over the already weak prosecution story. The present case rests entirely on the alleged recovery of case property, i.e., illicit liquor, from the possession of the accused by police officials i.e., PW1, who was on patrolling duty at the relevant time and place, as per the prosecution story. 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. It is relevant here 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 State Vs. Soniya FIR No. 473/2022 Page No. 19 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:38:10 +0530 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."
24. Since public persons were not made a part of investigation, the departure entry of the aforesaid police official i.e., PW1 who was on patrolling duty at the time when he apprehended the accused with case property, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW1 is available on record. Even during the course of his cross examination PW1 failed to recall the DD entry vide which he was on patrolling duty, though this omission is not fatal to the case of the prosecution but it creates a loophole in the prosecution story which could have been plugged by producing the relevant record.
25. Now coming to part b) of the plea. According to the testimonies of the witnesses, the case property was sealed with the seal of VK and the same was handed over to PW1 HC Sandeep. However, neither any handing over memo of seal was prepared regarding the same nor any entry was made in the Malkhana regarding the deposit of seal. Further, PW1 deposed that he had returned the seal to PW5 on the same day whereas PW5 stated that the State Vs. Soniya FIR No. 473/2022 Page No. 20 of 23 Digitally signed by AKRITI MAHENDRU AKRITI MAHENDRU Date:
2025.08.08 16:38:14 +0530 seal was returned to him on the next day and in the absence of a return memo this contradiction cannot be explained. This creates a loophole in the chain of custody of the case property. Further, according to testimony of PW3 the case property was deposited in the excise lab on 25.07.2022 whereas it was seized on 08.06.2022, there is an unexplained delay of 47 days in depositing the case property in the lab. Therefore, the possibility that the case property may have been tampered with cannot be ruled out.
26. Insofar as plea c) is concerned, perusal of the evidence on record reveals that the documents i.e., seizure memo (Ex.PW-1/A) and Form M- 29 were admittedly prepared before the rukka was sent to the Police station for registration of FIR meaning thereby, that the FIR was registered subsequent to the preparation of the aforementioned documents therefore, the FIR number would have come to the knowledge of the witnesses only after a copy of the FIR was brought on the spot by PW1. Thus, ordinarily the FIR number should not have been mentioned on the seizure memo or Form- M-29, which purportedly came into existence before the registration of the FIR. Conversely, both these documents not only bear the FIR number but also the case details. No explanation has come forth as to how the FIR number and the case details have appeared on seizure memo (Ex.PW-1/A) and Form M-29. PW5 ASI Virender in his testimony had stated that seizure memo was prepared by him and he had filled the Form M-29 at the spot before preparing the tehrir/rukka, which was handed over to PW1 HC Sandeep for registration of FIR. This leads to an inference that either the State Vs. Soniya FIR No. 473/2022 Page No. 21 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:38:20 +0530 said documents were prepared later or the FIR had been registered prior to preparation of the documents. In both the situations a shadow of doubt is cast over the prosecution story, the benefit of which must accrue to the Accused.
27. It is a settled proposition of criminal law that prosecution is obliged to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the Accused. Burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the Accused. In the instant case, the prosecution has miserably failed to discharge that burden even on the touchstone of preponderance of probabilities, leave alone beyond reasonable doubt.
28. Upon due circumspection of the totality of foregoing facts and circumstances, including but not limited to scrutiny of material available on record in the adumbral of the legal position governing the field, this Court is of the considered opinion that the prosecution could not prove beyond reasonable doubt that the illicit liquor was recovered from the possession of the Accused which is a sine qua non for commission of offence under section 33(f) of the Delhi Excise Act,2009. Having observed so, this Court hereby, acquits the Accused Soniya for the commission of offence under State Vs. Soniya FIR No. 473/2022 Page No. 22 of 23 Digitally signed by AKRITI AKRITI MAHENDRU MAHENDRU Date:
2025.08.08 16:38:25 +0530 section 33(f) of the Delhi Excise Act, 2009, complained of in the instant case FIR.
Announced in open court Digitally
signed by
on this 8th day of August, 2025 AKRITI
MAHENDRU
AKRITI
(This judgment contains 23 pages MAHENDRU Date:
2025.08.08
and each page is signed by me) 16:38:29
+0530
(Akriti Mahendru)
Additional Chief Judicial Magistrate
(West)/THC/Delhi
08.08.2025.
State Vs. Soniya FIR No. 473/2022 Page No. 23 of 23