Delhi District Court
State vs Samita on 18 February, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
SAMITA
CASE No.6085/2020
FIR No.390/2019
P.S. Khyala
U/S- 33/38 Delhi Excise Act,
2009
1. Date of commission of offence : 08.11.2019
2. Name of the Complainant : Ct. Virender
3. Name of the accused,
and his parentage and residence: Samita W/o Sh. Tirath Ram,
R/o H.No.419, C-Block,
Raghubir Nagar, Khyala, Delhi
4. Date when judgment : 19.12.2024
was reserved
5. Date when Judgment : 18.02.2025
was pronounced
6. Offence Complained of : Section 33/38 of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 08.11.2019,
at about 07.30 PM at C-Block, House No.419, JJ Colony, Raghubir Nagar, Delhi within the jurisdiction of PS - Khyala, accused Samita was found in possession of two plastic sacks of which each plastic sack was containing 96 quarter bottles of Crazy Romeo Whiskey for sale in Arunachal Pradesh only without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 19.10.2020 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and issued summons to the accused on 19.10.2020. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 15.09.2021.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 23.12.2021 to which she pleaded not guilty and claimed trial. On 14.02.2023, proceedings u/s 294 CrPC were conducted wherein the accused admitted the DD No.48 A dated 08.11.2019 and Excise result dated 06.12.2019.
FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 2
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 05 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
S. No. Name of Documents Dates of Dates of
Prosecution Exhibited in examination-in- cross-
witnesses Evidence. chief. examination
PW-1 W/Ct. Kranta (i) Seizure 30.05.2022 30.05.2022
memo -
Ex.PW1/A
(ii) Case
property -
Ex.P2
PW-2 Ct. Virender (i) Recording 30.05.2022 30.05.2022
Kumar of statement
of PW-2 -
Ex.PW2/A
PW-3 HC Harphool (i) DD entry 14.02.2023 14.02.2023
no.18 -
Ex.PW3/A
(OSR)
PW-4 Retired SI (i) Copy of 14.02.2023 14.02.2023
Shanti Swaroop FIR -
Ex.PW4/A
(OSR)
(ii) Certificate
u/s 65 B of
IEA -
FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 3
Ex.PW4/B
(OSR)
(iii)
Endorsement
i.e. DD No.43
A-
Ex.PW4/C
PW-5 ASI (I) Form 10.04.2024 10.04.2024
Dharamvir M-29 -
Yadav Ex.PW5/A
(ii) Site plan -
Ex.PW5/B
(iii)
Disclosure
statement of
accused -
Ex.PW5/C
(iv)Notice u/s
41A CrPC -
Ex.PW5/D
(v) Record
qua
confiscation
and
destruction
order
alongwith
report dated
08.07.2020
and certificate
with the
photograph -
FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 4
Ex.P1 (colly)
2.2 PW-1 was W/Ct. Kranta who deposed that on 08.11.2019 she was
posted at PS Khyala as Constable. On that day, she was directed by the concerned Duty Officer at around 07.50 pm to join the investigation of the present case alongwith IO HC Dharambir Yadav. On this, she alongwith IO went to at C-Block in front of House No.419 J.J. Colony, Raghubir Nagar, Delhi where Ct. Virender was already present and accused was apprehended there as illicit liquor was recovered from possession of the accused. At the spot, two sacks were found in the possession of the accused and IO HC Dharambir Yadav checked both the kattas and each was found containing 96 quarter bottles of Crazy Romeo Whiskey for sale in Haryana only. At the spot, IO requested 4-5 passersby to join the recovery proceedings but none of them agreed and left the spot without disclosing their names and address. In continuation of proceedings, two quarter bottles, one from each sack were taken out as sample while the remaining 95 in each were put in the respective sacks. The quarter bottles taken out as sample were moored with white cloth from bottle neck and sealed with the seal of 'DY'. Both the samples were given serial no.S1 and S2. The sacks containing the remaining quarter bottles were also moored with white cloth and sealed with the seal of 'DY'. Both sacks were given serial no.1 and 2. The recovered liquor was taken into possession vide seizure memo. Thereafter, IO recorded the statement of Ct. Virender and prepared rukka/tehrir on the same whereupon Ct. Virender got the present FIR registered and returned to the spot. IO prepared the site plan and served notice u/s 41A Cr.P.C. upon the accused FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 5 for her appearance before the Court as and when required. After completion of the aforementioned proceedings, they returned to the police station where the case property was deposited with MHC(M).
2.3 PW- 2 was Ct. Virender Kumar who deposed that on 08.11.2019 he was posted at PS Khyala as Constable. On that day, he was deputed to perform beat patrolling duty in beat area no.9 falling within the in jurisdiction of PS Khyala and for that purpose, he left the PS after 09.00 am.
During the patrolling duty, at around 07.30 pm, one secret informer met PW-2 at the C-Block and apprised him that one woman was present in front of C-419 nearby Park having in her possession two sacks containing illicit liquor. On this information, PW-3 reached at the aforesaid place where the accused was present and having in her possession two sacks out of which smell of alcohol was coming. The said fact was confirmed by PW-2 who put his hands upon the sacks wherein the glass bottles were kept and then PW-2 gave the information to Police Post Raghubir Nagar and on this information, HC Dharambir Yadav and W/Ct. Kranta came to the spot. At the spot, the custody of accused was handed over to W/Ct. Kranta and in continuation of proceedings, the said sacks were opened by the IO and each was found containing 96 quarter bottles of Crazy Romeo Whiskey for sale in Arunachal Pardesh only. From each sack, one quarter bottle and in total two quarter bottles were taken out as samples. Both quarter bottles taken out as samples were wrapped from bottle neck with white cloth and sealed with the seal of 'DY'. In the same manner, the remaining quarter bottles were put in the same sacks and moored with white cloth and sealed with the seal of 'DY'.
FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 6 The sealed samples were given serial no.S1 and S2 and sacks were given serial no.1 and 2. Form M-29 was filled by the IO and seal after use was handed over to PW-2 and thereafter, the recovered liquor was taken into possession vide seizure memo. IO recorded statement of PW-2. IO prepared rukka/tehir and handed over the same to PW-2 for registration of FIR. Whereupon, PW-2 got the present FIR registered. The site plan was prepared by the IO at the spot. Accused was served with notice u/s 41A CrPC and thereafter, they returned at the PS and deposited the case property with the MHC (M) by the IO.
2.4 PW-3 was HC Harphool who deposed that on 08.11.2019 he was posted at Police Post Raghubir Nagar, PS Khyala as Constable. On that day, he was assigned to perform the duty of DD Writer and on that day at about 07.50 pm, an information was received from Virendra regarding apprehension of one woman at C-Block, House No.419, JJ Colony, Raghubir Nagar, Khyala, Delhi for having in her possession illicit liquor in two sacks. Said information was reduced into writing and one copy of the same was further handed over to the IO HC Dharambir who was entrusted to carry out the further proceedings and he was accompanied by W/Ct Kranta for the spot. The said DD entry no.18 was already on record.
2.5 PW-4 was Retired SI Shanti Swaroop who deposed that on 08.11.2019 he was posted at PS Khyala as ASI. On that day, he was assigned to perform the duty of Duty Officer from 04.00 pm to 12.00 midnight. During the said duty hours, at 10.05 pm, he received original rukka/tehrir FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 7 sent by HC Dharambir Yadav through Ct. Virender. On the basis of said rukka/ tehrir, the present case FIR was registered by use of computer installed at the police station and the same was under his lawful control and supervision. An endorsement on original rukka/ tehrir vide DD No. 43A was made and after the registration of FIR, one copy of the same was retained in register no.1 which PW-4 had brought and one copy of the same was handed over to Ct. Virendra to further handover the same to HC Dharambir for necessary proceedings. A certificate u/s 65B of Indian Evidence Act was also issued qua the said FIR.
2.6 PW-5 was ASI Dharamvir Yadav who deposed that on 08/11/2019, he was posted at PS Khyala as Head Constable. On that day, he had received the DD entry no.18 PP. After that he alongwith W/Ct. Kanta Bai reached at the House No.C-419 C-Block, Ground Floor, JJ Colony Raghubir Nagar, Delhi. After reaching there, PW-5 met Ct. Virender. At the spot Ct. Virender had already apprehended the accused Samita along with the case property. PW-5 asked 4-5 public persons to join the investigation but they refused the same and left the spot without disclosing their name and address. Due to paucity of time, no notice was served by PW-5 to them. Thereafter, PW-5 checked the said katta and it was found containing 96 quarter bottles 180 ml each bearing the label of Crazy Romeo whiskey for sale in Arunachal Pradesh only 180 ml, whisky NV. On being asked by PW-5, the said lady revealed her name as Smita. Out of those 96 quarter bottles, one quarter bottle each was taken out as sample and tied with a white cloth from its bottle neck and sealed with the seal of 'DY'. The rest of the 95 quarter FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 8 bottles were put in the same plastic katta tied with a white cloth and duly sealed with the seal of 'DY'. The said plastic katta was given serial no.1 and the sample quarter bottle was given serial no.S2. After sealing, the seal was handed over to Ct. Virender. PW-5 filled up form M-29 and the abovesaid liquor as well as sample were seized vide seizure memo. PW-5 recorded the statement of complainant/Ct. Virender. Thereafter, PW-5 prepared the tehrir and the same was handed over to Ct. Virender for registration of FIR. Ct. Virender went to the PS and got the FIR registered. After registration of FIR, Ct. Virender returned back at the spot and handed over the copy of FIR and original tehrir to PW-5 at the spot. PW-5 prepared the site plan and recorded the disclosure statement of accused. The case property was deposited in the malkhana. PW-5 served the notice u/s 41A CrPC upon the accused. PW-5 recorded the statements of the witnesses u/s 161 CrPc. During the investigation, samples were sent to Excise Lab and later on result was obtained and same was put on the record. After the completion of the investigation, PW-5 prepared the chargesheet and submitted the same before the court.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 After the prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded separately on 04.12.2024 wherein she denied the allegations and tendered explanation that she had been falsely implicated and nothing was recovered from her possession. She opted not to lead any DE in his defence.
FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 9
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused person was apprehended with the case property which was recovered from her and on a combined reading of prosecution witnesses' testimony, offence under section 33/38 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused person.
4.2 On the other hand, Ld. Counsel for the accused person has argued that there is no legally admissible evidence against the accused person and that the accused person has been falsely implicated in the present case. He submitted that no videography, photography, examination of any public witness was done despite the recovery being conducted in a thickly populated area. He argued thus that prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government.
5.2 Section 33 of Delhi Excise Act, 2009 states that:
'whoever, in contravention of provisions of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 10 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 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 with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees'.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
'whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees'.
5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 11 several doubts have been created over the factum of alleged recovery from the accused. To begin with, it is abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities. It is not the case of the prosecution that no public witnesses were available and it is stated by PW-1, PW-2 as well as PW-5 in their cross examination that the area was populated and public persons were asked to join the investigation but no formal notice was served on them. The witnesses also admitted that the rickshaw driver who took the case property to the police station from the spot was never examined or made a witness in the present matter.
5.5 When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of provisions of Cr.P.C and IPC as noted below.
Section 100(4) Cr.P.C states that,"before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 12 witness the search and may issue an order in writing to them or any of them so to do" ....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid- (a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or (b) in the prevention of suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property". Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required; Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 13 jurisdiction".
Section 187 IPC states that, "whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
5.6 The importance of getting independent witnesses to join the investigation has been laid out by the superior courts in a catena of judgments. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, the Hon'ble High Court of Punjab and Haryana observed that such explanations that public persons refused to join the proceedings are unreliable. Moreover, the Hon'ble Supreme Court of India also noted in the case of Pradeep Narayana Vs. State of Maharashtra AIR 1995 SE 930 that failure of the police to get persons from the locality to join the investigation during search creates doubt about its fairness, benefit of which has to be FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 14 given to the accused. In the present matter, hence, the chances of false implication and planted recovery, as alleged by the defence, cannot be ruled out.
5.7 There are other discrepancies casting a doubt over the prosecution chain of events. For instance, PW-1 stated that she had reached the spot of the incident alongwith the IO around 07.50 pm on motorcycle. This is also the version given by PW-5 however PW-2 stated that the IO had arrived on foot. PW-1 did not recall any other vital particulars such as which document was prepared first, which document prepared prior to the rukka, at which time Ct. Virender had come back to the spot, whether any document was prepared in his absence, how the case property was taken to the police station or at what time she had left the spot. PW-2 also did not furnish any relevant DD entry which would have corroborated his arrival at the spot. While PW-2 stated that he left the spot for registration of FIR at around 08.45 pm and returned at about 10.15 pm, PW-5 claimed that PW-2 had left around 10.30 pm and reached after about one hour i.e. around 11.30 pm. This significant discrepancy was never resolved.
Another significant and unexplained discrepancy in the prosecution evidence is regarding the seizure in the present matter. While PW-1 and PW-2 mentioned two sacks from which one bottle each, hence, two bottles total were taken as samples, on the other hand, PW-5 deposed that he had inspected only one sack from which one sample quarter bottle was taken. As the seizure memo was prepared by the IO i.e. PW-5 himself and the same bears details of two sacks containing 96 bottles each of which one bottle FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 15 each was taken, the testimony of the IO is in clear contradiction of the same. Additinally, the seizure memo in the present case is stated to have been made prior to preparation of tehrir and registration of FIR by all the witnesses in their examination in chief. However, firstly, the IO stated in his cross examination that he had not prepared any document before sending the tehrir for registration of FIR. Secondly, the seizure memo bears complete particulars of the present case FIR at the top in similar ink. This raises doubt on the proceedings as the implication is that either the FIR was registered prior in time or the document in question was prepared later on at the police station. In both cases, the benefit of doubt goes to the accused persons.
5.8 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. Firstly, as already noted above, the IO deposed regarding seizure and sealing of only one sack and one bottle there from. As it is his seal which was used for the other sack and bottle, use of such seal without his information or recollection becomes circumspect. Secondly no seal handing over memo had been prepared and PW-2 stated that he had handed over the seal to the MHC (M) on the same day. No memo in this regard or any seal return memo has been furnished. Tampering with the seal cannot be ruled out in such a case as the same remained with officials of the same police station as the IO himself, if not the IO. No independent witness was examined with respect to the same and no photography or videography was done during recovery, sealing or seizure proceedings. In a case where only police witnesses are available, it becomes incumbent upon such officials to comply with all procedural requirements and failure of the same FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 16 shall work in the favour of the accused.
5.9 Most importantly, the very existence of violation of the excise policy has been brought into question as only two quarter bottles among those seized were sent for chemical analysis and found to contain alcohol. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been proved by the prosecution. Neither was the batch number of the remaining bottles noted to correlate them with the sample bottle. Now, since the State has only found two quarter bottles containing 180 ml alcohol, allegedly recovered from the accused, an offence under Section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out, as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. No batch number of the remaining bottles corresponding to the sample seems to have been noted to indicate similarity of contents.
5.10 The cardinal principle of law that the prosecution has to prove its case beyond all reasonable doubts, remains the dictating factor. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubt. It is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is apparent that the case of the prosecution suffers from several glaring FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 17 loopholes and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to convict the accused merely on the basis of testimony of the police officials. Hence, accused Samita W/o Sh. Tirath Ram, R/o H.No.419, C-Block, Raghubir Nagar, Khyala, Delhi is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance ANNOUNCED IN THE OPEN SUKRITI Digitally signed by SUKRITI SINGH COURT ON 18.02.2025 SINGH Date: 2025.02.19 17:00:08 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 18 pages, all signed by the presiding officer Digitally signed by SUKRITI SUKRITI SINGH SINGH Date: 2025.02.19 17:00:32 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No.390/2019 State Vs Samita U/s 33/38 Delhi Excise Act 18