Delhi District Court
State vs Sonam @ Arti on 25 September, 2025
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT,
NEW DELHI.
FIR No. 449/2016
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 4197/2017
State Vs. Sonam @ Arti
W/o Sh. Sunny,
R/o H No. B - 346, Gali No. 29, Mahavir Enclave,
Part - II, New Delhi ........Accused
S. No. of the case : 4197/2017
The date of offence : 23.05.2016
The name of the complainant : Ct. Sandeep
The name of the accused : Sonam @ Arti
The offence complained : Section 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 25.09.2025
The date of order : 25.09.2025
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that On 23.05.2016, Ct. Sandeep was posted at PS Dabri as Constable. On that day, Ct. Sandeep along with Ct. Naresh were on patrolling duty in beat no. 7 in gali no. 29, where FIR No. 449/2016 State Vs. Sonam @ Arti 1 of 18 Ct. Sandeep saw one lady was sitting in front of H.No.B-346, and one plastic katta and two cartoon boxes were lying near her. On seeing him in uniform, she started moving towards B-346. On seeing her moving, they ran towards her and stopped her, asked her what is inside the plastic katta and cartoon boxes. Upon asking, she did not give any satisfactory answer and thereafter, Ct. Sandeep checked the plastic katta and cartoon boxes which were found containing illicit liquor. Ct. Sandeep informed about this to the DO. Thereafter, HC Ishwari Lal along with W/Ct. Babita came to the spot.
2. An FIR bearing No. 449/2016 U/s 33 Delhi Excise Act was registered at PS Dabri against the accused. Investigation of the case was handed over to Investigating Officer ASI Ishwari Lal, who filed the chargesheet.
3. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the accused. After taking cognizance of the offence, the accused was summoned to face trial.
4. 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 pleaded not guilty and claimed trial.
FIR No. 449/2016 State Vs. Sonam @ Arti 2 of 18
5. During the course of trial, the prosecution examined the following witnesses.
6. W-HC Sandhya was examined as PW1. She stated thus: "On 25.05.2016, I was posted at as Constable at PS Dabri. I alongwith HC Ishwari and Ct. Naresh went to the spot i.e. H. No. B-346, Gali No. 29, Mahavir Enclave, Part-II, New Delhi and found the accused Sonam (not present in the court today but her identity is not disputed by the Ld. Defence Counsel), who was at her house. IO conducted investigation from accused Sonam and thereafter, arrested her vide arrest memo Ex.PW1/1 bearing my signatures at point A and conducted her personal search which is Ex.PW1/2 bearing my signatures at point A. The information of her arrest was given to her know Ranjeet and thereafter, her medical examination was got conducted at hospital. She was produced in the court by the IO. IO recorded my statement."
7. In her cross-examination, PW1 stated thus: "It is wrong to suggest that all the investigation was conducted while sitting in the PS. It is wrong to suggest that I had never visited the spot."
8. ASI Ishwari Lal was examined as PW2. He stated thus: "I was posted at PS Dabri as HC. The investigation of the present case was marked to me. Upon receipt of DD No. 60B, I alongwith W/Ct. Babita reached at the spot i.e. H.No. B-346, Gali no. 29, Mahavir Enclave and met with Ct. Sandeep, who produced the apprehended lady, whose name, I came to know Sonam @ Arti w/o Sh. Sunny r/o B-346, Gali no. 29, Mahavir FIR No. 449/2016 State Vs. Sonam @ Arti 3 of 18 Enclave alongwith two cartbon boxes of illicit liquor. I asked 3-4 public persons to join the investigation, but none of agreed and left the places without disclosing their names and addresses. Without wastage of time, I checked the plastic katta and 84 quarter bottles of illilcit liquor, out of 17 of Asli Snatra Masaledar Desi Sharab for sale in haryana only, qty 180 ml, 15 Impact Grain Whisky for sale in haryana only, qty 180 ml, 18 Espisode Clasic Whisky for sale in haryana only, qty 180 ml, 18 quarter bottles of Aristrocrate Premium Whisky for sale in Delhi only, qty.180 ml and 16 quarter bottles of Mcdowells No. 1 clasic Blend whisky for sale in Delhi only, qty. 180 ml. I took 1-1 quarter bottles as sample from each brand of revocered illicit liquor and put back remaining into the same plastic katta and tied the opening of the samples as well as plastic katta with piece of plastic cloth and sealed with seal of IL. I marked S.No.1 to plastic and S1 to S5 to samples. Thereafter, I checked carton boxes. One of carton box was contaiing 48 quarter bottles of Impact Grain Whisky for sale in haryana only, qty, 180 ml and another was contaiing of 48 quarter bottles of Ali Santra Masaledar Desi Sharab. I took 1-1 quarter bottles as sample from each carton box and put the remaining into the same carton boxes and put them in to the plastic katta and tied the opening the plastic katta and samples with piece of white cloth and sealed with the seal of IL. I marked S.No. 2 to plastic katta and S6-S7 to samples. I filled Form M-29 Ex.PW2/1 bearing my signatures at point A at the spot and handed over the seal after used to Ct. Sandeep. I recorded the statement of Ct. Sandeep Ex.PW2/A and bearing my signatures at point A. I seized the sample as well as remaining liquor vide seizure memo Ex.PW2/B and bearing my signatures at point A. I prepared FIR No. 449/2016 State Vs. Sonam @ Arti 4 of 18 tehrir Ex.PW2/C bearing my signatures at point A and got the FIR registered through Ct. Sandeep. I prepared site plan of incident at the instnace of Ct. Sandeep Ex.PW2/D bearing my signatures at point A. I arrested and conducted personal search of accused vide memo Ex.PW1/1 and Ex.PW1/2 bearing my signatures at point A respectively. the medical examination of accused got conducted and case property alongwith samples, form M29 and copy of seizure memo were deposited in the malkhana of PS. I sent samples to Excise Laboratory for result analysis. Accused is present in court today and correctly identified by the witness. At this stage, MHC(M) has produced destruction order of case property i.e. F.CONF./2017/7524- 25 dated 19.05.2017. Same is taken on record and Ex.P1 (colly) (OSR). MHC(M) has also produced 5- quarter bottles as samples. One Quarter bottle of Asli Snatra Masaledar Desi Sharab for sale in haryana only, qty 180 ml, one quarter bottle of Impact Grain Whisky for sale in haryana only, qty 180 ml, one quarter bottle of Espisode Clasic Whisky for sale in haryana only, qty 180 ml, one quarter bottle of Aristrocrate Premium Whisky for sale in Delhi only, qty.180 ml and one quarter bottle of Mcdowells No. 1 clasic Blend whisky for sale in Delhi only, qty. 180 ml. the same are shown to the witness and witness correctly identified the same."
9. In his cross-examination, PW2 stated thus: "I do not remember the DD no. of my arrival to PS. We left the spot after the completion of investigation at about 10 PM after reaching at the spot. I went to PS on my motorcycle alongwith W/Ct. Ct. Sandeep took case property in Auto rickshaw. There are residential houses but public persons were FIR No. 449/2016 State Vs. Sonam @ Arti 5 of 18 passing by. There are shops at the spot. It is correct that case property was not disposed off in my presence. I asked only passers by to join the investigation but they refused to join. Ct. Sandeep went to PS on my motorcycle alongwith tehrir at 8 PM and came back to the PS at about 08.30 PM on the same motorcycle. I did mention FIR no. on each quarter bottle. It is correct that I did not prepared pabandinama and recorded the disclosure statement of accused. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that all the documents were prepared while sitting at PS."
10. HC Sandeep was examined as PW3. He stated thus: "On 23.05.2016, I was posted at PS Dabri as Constable. On that day, I along with Ct. Naresh were on patrolling duty in beat no.7 in gali no. 29, where I saw one lady was sitting in front of H.No.B-346, and one plastic katta and two cartoon boxes were lying near her. On seeing me in uniform, she started moving towards B-346. On seeing her moving, we ran towards her and stopped her, asked her what is inside the plastic katta and cartoon boxes. Upon asking, she did not give any satisfactory answer and thereafter, I checked the plastic katta and cartoon boxes which were found containing illicit liquor. I informed about this to the DO. Thereafter, HC Ishwari Lal along with W/Ct. Babita 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. I handed over abovesaid plastic katta and cartoon boxes full of illicit liquor to the IO/HC Ishwari lal and accused Sonam to W/Ct. Babita. IO inspected the said plastic katta and cartoon boxes which were found containing total 180 quarter bottles out of which 84 quarter FIR No. 449/2016 State Vs. Sonam @ Arti 6 of 18 bottles were in plastic katta and 48 quarter bottles in each cartoon box, from which one quarter bottle for each brand were taken as sample i.e. in total five samples. The same were sealed with the seal of IL and rest of the quarter bottles were placed in the respective katta and cartoon box sealed with the seal of IL. IO prepared seizure memo already Ex. PW2/B bearing my signature at point B. IO filled M29 form. After that IO recorded my statement which is already Ex.PW2/A (bearing my signature at point B) and prepared the rukka in my presence already Ex.PW2/C. After that IO handed over seal to me and gave me rukka for registration of FIR. Thereafter, I went to PS and got the FIR registered, after sometime, I came back at the spot and handed over copy of FIR and original rukka to IO. IO prepared the site plan at my instance already Ex.PW2/D bearing my signature at point B. IO released the accused by giving notice under section 41A Cr.P.C. IO recorded my statement u/s 161 Cr.P.C. I can identify the accused. Accused is absent. Ld.counsel for accused submits that identity of accused is not disputed. I can identify the case property, if shown to me. At this stage, MHC(M) has produced the case property i.e. five quarter bottles in unsealed condition (asli santra maseledar desi sharab, impact green whiskey, episode classic whiskey, Mcdowells no.1, Aristocrate Premium whiskey). The same is correctly identified by the witness. The same is now Ex.A1 collectively. MHC(M) has also produced a copy of destruction order dated 19.05.2017. The same is taken on record as already Ex.P-1 (colly) (OSR)."
11. In his cross-examination, PW3 stated thus: "We left the spot at 10- 10:30 pm. There were residential houses and shops near the alleged FIR No. 449/2016 State Vs. Sonam @ Arti 7 of 18 spot. IO reached at the spot alongwith W/Ct. Babita at about 6:00 pm. I took the tehrir to PS at about 6:30 pm. No notice was served to public persons for non-joining the proceedings. Case property was taken to the PS through private vehicle. It is wrong to suggest that nothing incriminating has been recovered from the possession of the accused or that I am deposing falsely."
12. HC Pradeep Kumar was examined as PW4. He stated thus: "On 19.07.2016, I was handed over the case property of the present case vide RC No. 104/21/16 marked as Mark Z bearing my signature at point A and asked to deposit the same in the Excise Lab, ITO, Vikas Bhawan. Thereafter, I deposited the same without any fabrication." Opportunity was given to the counsel for cross-examination, however, no cross-examination was carried out.
13. HC Naresh Kumar was examined as PW5. He stated thus: "On 25.05.2016, I was posted as Ct. PS Dabri. On That day, I along with HC Ishwari Lal and W.Ct Sandhya went to the spot i.e. H no. B 346, Gali No. 29, Mahavir Enclave, Part II, there accused Sonam was found. Thereafter, IO investigated from accused Sonam, arrested her with the help of W/Ct. Sandhya vide memo already Ex. PW-1/1, personal searched vide memo Ex. PW-1/2 both bearing my signature at point D. The information of arrest was given to her father i.e. Ranjeet and thereafter she was medically examined at hospital and later on we produced her in the concerned court. IO recorded my statement u/s 161 Cr.P.C. Accused is present in the court and correctly identified by the witness."
FIR No. 449/2016 State Vs. Sonam @ Arti 8 of 18
14. In his cross-examination, PW5 stated thus: "It is wrong to suggest that all the investigation was conducted while sitting at PS. It is wrong to suggest that I never visited the spot along with IO and W/Ct. Sandhya. It is wrong to suggest that I am deposing falsely at the instance of IO."
15. Statement of accused was recorded under Section 294 Cr.P.C and she admitted the following documents:
a. Endoresement on tehrir, FIR and DD No. 60B as Ex. A1 (Colly).
b. Excise Lap report dated 03.08.2016 as Ex.A2.
16. Thus, witness at serial no. 2 And 6 were dropped from the list of witness.
17. The prosecution evidence was closed and thereafter the statement of accused u/s 313 Cr.P.C was recorded on 07.08.2025 wherein all the incriminating evidence appearing against the accused was put to her, which she had denied to be correct and submitted that she was not found in possession of illicit liquor. That she has been 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 his defence.
18. 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.
FIR No. 449/2016 State Vs. Sonam @ Arti 9 of 18 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.
19. 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.
20. 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
21. 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. 449/2016 State Vs. Sonam @ Arti 10 of 18 I. Non-joining of Public Witnesses
22. 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.
23. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW-2 and PW-3 reveals 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.
24. 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 FIR No. 449/2016 State Vs. Sonam @ Arti 11 of 18 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 (Emphasis supplied).
25. 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.
26. 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.
FIR No. 449/2016 State Vs. Sonam @ Arti 12 of 18 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 in the preservation of the sample the benefit of the same should go to the accused."
II. Discrepancy in the case qua Seizure Memo and Form M29.
27. There exists yet another discrepancy in the case of the prosecution. PW 2/IO in his examination categorically stated that he prepared the site plan, seizure memo, rukka and Form M 29 and then handed over the rukka to PW 3 for the purpose of registration of FIR. PW3, thereafter, went to the PS and got the FIR registered. PW 3 also submitted the same. Thus, it is clear from the testimony of PW 2/IO and PW 3 that the seizure memo and Form M 29 were prepared before the tehrir/original rukka was handed over by PW2 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 FIR No. 449/2016 State Vs. Sonam @ Arti 13 of 18 have come to knowledge of PW 2/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.
28. 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, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is FIR No. 449/2016 State Vs. Sonam @ Arti 14 of 18 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."
29. 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. 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 FIR No. 449/2016 State Vs. Sonam @ Arti 15 of 18 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."
30. 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.
III. No departure or the arrival entry of PW 1.
31. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the FIR No. 449/2016 State Vs. Sonam @ Arti 16 of 18 relevant time by a police official PW 1, who was on patrolling duty at the relevant time and place, as per the prosecution story.
32. 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 FIR No. 449/2016 State Vs. Sonam @ Arti 17 of 18 attributes oblique motive on the part of the prosecution."
33. In the present matter there exists no entry which could even remotely suggest that PW 3 was assigned patrolling duty on the given date and time and he went for the purpose of patrolling at the given date and time.
34. 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 Sonam @ Arti, is, therefore, acquitted of the offence u/s 33/38 Delhi Excise Act.
Announced in the open court on 25.09.2025.
Digitally signed by HARSHAL NEGI HARSHAL Date: (Harshal Negi)
NEGI 2025.09.25 JMFC-02/Dwarka Court,
15:23:29 New Delhi, 25.09.2025
+0530
It is certified that the present judgment runs into 18 pages and each page bears my signature.
Digitally signed by HARSHAL NEGI HARSHAL NEGI Date: (Harshal Negi) 2025.09.25 15:23:44 JMFC-02/DwarkaCourt, +0530 New Delhi, 25.09.2025 FIR No. 449/2016 State Vs. Sonam @ Arti 18 of 18