Delhi District Court
State vs Anju on 16 May, 2026
IN THE COURT OF MS. ISRA ZAIDI: JUDICIAL MAGISTRATE
FIRST CLASS-04, NORTH EAST, KARKARDOOMA COURTS,
DELHI
JUDGMENT
Cr. No. of the case 2275/2020
CNR Number DLNE020035212020
FIR Number 132/2019
Police Station Karawal Nagar
Name of the Complainant/Informant HC Shyam Sunder Name of the Accused, his parentage ANJU and address W/o Vinod Kumar, R/o H.No. A-7, Gali No. 1, Ankur Enclave, Karawal Nagar, North East Delhi.
Date of Commission of offence 08.04.2019
Date of institution 17.10.2020
Offences complained of U/s 33 of Delhi Excise Act
Offences charged of U/s 33 of Delhi Excise Act
Plea of the Accused Pleaded not guilty
Date of final argument 16.05.2026
Date of pronouncement of Judgment 16.05.2026
Final Order Acquitted
BRIEF FACTS OF THE CASE
01. The accused is brought to face trial under Section 33 Delhi Excise Act (hereinafter referred to as "the Act"). It is the case of the prosecution in succinct that ISRA ZAIDI FIR No. 132/2019 Page 1 of 14 State vs. Anju Digitally signed by ISRA ZAIDI Date: 2026.05.16 15:20:39 +0530 on 08.04.2019 at around 11:30 am at H.No. A-7, Gali No. 1, Ankur Enclave, Karawal Nagar, Delhi, one person namely Anju (hereinafter referred to as 'the accused') was found in possession of 48 quarter bottles of illicit liquor without any license or permit as required by Delhi Excise Act. Thereafter, the present FIR was registered u/s 33 of the Act.
COURT PROCEEDINGS
02. After investigation, charge-sheet was filed and accused person was summoned. The mandate of Section 207 Cr.P.C was complied with and charge was framed against the accused u/s 33 of the Act on 20.04.2023. The accused had pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
PROSECUTION EVIDENCE
03. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses S. No. Witness number Name of the witness
01. PW1 ASI Shyam Sundar
02. PW2 HC Vinay Kumar
03. PW3 W/HC Sunita
04. PW4 ASI Sukhpal
05. PW5 ASI Junaid Documents relied upon by the prosecution S. No. Ex./Mark Nature of documents
01. Ex. PW1/A Rukka
02. Ex. PW1/B Seizure memo
03. Ex. PW3/A Arrest Memo Digitally signed by ISRA ISRA ZAIDI Date:
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04. Ex. PW3/B Personal Search memo
05. Ex. PW3/C Disclosure statement of accused
06. Ex. PW4/A Site Plan
07. Ex. PW5/A Copy of Road Certificate
STATEMENT OF ACCUSED U/S. 313 Cr.P.C
04. Statement of accused was recorded u/s 313 Cr.P.C on 03.02.2026. The accused stated that she is innocent. No recovery was effected from her and the same had been planted upon her. The police had called her to the police station and falsely implicated in the present case. She did not know anything about the present case. No defence evidence was led by the accused despite granting her an opportunity.
FINAL ARGUMENTS
05. During the course of final arguments, it has been argued by Ld. APP for the State that prosecution has proved its case beyond reasonable doubt and all the ingredients of relevant Section are complete and in view of the presumption under Section 52 of the Act the accused be convicted of the present offence.
06. On the other hand, the Ld. Defence Counsel argued that the accused has been falsely implicated in the present case, that there is no public witness of the incident and that the recovery is planted upon the person of the accused as no recovery was ever effected from her. He also pointed out to the contradictions in the testimony of the witnesses. According to him, the prosecution miserably failed to prove its case against the accused beyond reasonable doubt.
STATEMENT OF ACCUSED U/S. 294 Cr.P.C
07. The accused had admitted the following documents without admitting its contents and hence the examination of the concerned witnesses were dispensed with. Digitally signed by ISRA ISRA ZAIDI Date:
FIR No. 132/2019 Page 3 of 14ZAIDI 2026.05.16 15:21:27 State vs. Anju +0530 Exhibit No. Nature of Documents Ex. A-1 FIR No. 132/2019, dt. 08.04.2019 Ex. A-2 Certificate u/s. 65-B Ex. A-3 DD No. 14 A, dt. 08.04.2019 Ex. A-4 Chemical Examiner Report, dt. 09.01.2020 BRIEF REASONS FOR THE JUST DECISION OF THE CASE
08. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
09. PW1 namely ASI Shyam Sundar in his examination in chief deposed that on 08.04.2019, he was posted at PS Karawal Nagar. He alongwith Ct. Vinay & W/Ct. Sunita were on patrolling duty. At about 11:15 am, during patrolling, they reached at Yamuna Dairy where they met the secret informer. He deposed that the secret informer informed them that at Gali No. 1, A Block, Ankur Enclave, one lady was selling illicit liquor. He immediately informed about the same to the SHO and SHO gave the direction to prepare raiding party. He further deposed that he had stopped 2-3 public persons to join the investigation but none of them agreed. He furhter deposed that he alongwith Ct. Vinay, W/Ct. Sunita and secret informer reached at Gali No. 1, A Block, Ankur Enclave, as they reached at the spot where the secret informer had pointed towards the lady and he left the spot. Thereafter, the lady, on seeing them went inside the house and with the help of lady constable she was apprehended and found in possession of white plastic bag/katta and one carton containing forty eight quarter bottles of illicit liquor 180 ml each labelled as "Santra for sale in Haryana".
Digitally
signed by
ISRA ISRA ZAIDI
Date:
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10. PW1 further deposed that he had taken out two samples and prepared the Pulanda in white cloth bearing the seal of "SS" and the remaining forty six quarter bottled were kept inside the carton and closed it with white cloth and sealed it with the seal of "SS". In his cross-examination PW1 testified that he did not remember DD entry of departure. He further testified that they went to the spot on foot during patrolling. He testified that place of incident was a public place. He further testified that he had sealed the case property before registration of the FIR and had prepared the seizure memo of case property before the registration of the FIR. He further testified that he had not offered to the accused his personal search or to the raiding staff before she was apprehended. He testified that he had sealed the case property and handed over the seal to Ct. Vinay and he had not prepared any seal handing over memo. He further denied all the other suggestions put to him by Ld. Defence Counsel.
11. PW2 namely HC Vinay Kumar in his examination in chief deposed on the same lines as PW1. He further deposed that ASI Shyam Sundar handed over the custody of the accused to ASI Sukhpal as he was appointed 2 nd IO in the case. He further deposed that W/Ct. Sunita conducted personal search and arrest of the accused. In his cross-examination PW2 testified that he did not know whether anyone had made any DD departure entry regarding patrolling duty on foot. He further testified that he did not remember whether IO had asked any call detail from their team. He further testified that no notice was given to any public persons who had refused to join the investigation. He further testified that case property was seized prior to registration of FIR and after sealing the case property the seal was handed over to him. He admitted that no seal handling over memo was prepared by HC Shyam Sundar. He testified that he did not remember when the case property was seized. He testified that the site plan was prepared by the IO but he did not remember who had signed on the same. He further denied all the other suggestions put to him by Ld. Defence Counsel. Digitally signed ISRA by ISRA ZAIDI Date:
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12. PW3 namely W/HC Sunita in her examination in chief deposed on the same lines as of PW1. She further deposed that she conducted the personal search of accused Anju vide personal search memo Ex. PW3/B and accused was arrested by IO vide arrest memo Ex. PW3/A. She further deposed that IO recorded the disclosure statement vide Ex. PW3/C and her (PW3) statement u/s 161 Cr.P.C was recorded by IO. She further deposed that she alongwith police staff and accused returned to the PS and the case property was deposited in PS Malkhana. Thereafter, she took the accused to JPC hospital for her medical examination. After the medical examination of accused she produced the accused before the Court. In her cross-examination PW3 testified that she did not remember DD entry of departure and they went to the spot on foot during patrolling. She further testified that they left the spot after completing her investigation at about 3:30 pm. She testified that she did not remember how the case property and the accused were taken to the PS. She further testified that IO seized the case property after registration of the FIR and she did not know to whom the seal was handed over by IO. She further denied all the other suggestions put to her by Ld. Defence Counsel.
13. PW4 namely Retd. ASI Sukhpal in his examination in chief deposed that on 08.04.2019 he was posted at PS Karawal Nagar as ASI. On that day he was handed over the original Tehrir and copy of FIR. Thereafter, he alongwith Ct. Vinay reached at the spot i.e. H. No. A-7, Gali No. 1, Ankur Enclave, Karawal Nagar Delhi where they met with HC Shyam Sunder & W/Ct. Sunita. Further W/Ct. Sunita handed over him the custody of accused who revealed her named as Anju and HC Shyam Sunder also handed over him the seized case property i.e. quarter bottles of illicit liquor. He investigated the case and filed the chargesheet. In his cross- examination, he testified that he reached at the spot alongwith Ct. Vinay on his bike but he did not remember the registration number of the said bike. He further testified that they remained at the spot till 04:25 pm. The case property was seized in his presence, however, he was not the witness of the same. He admitted that he did not Digitally signed by ISRA ISRA ZAIDI Date:
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remember to whom the seal was handed over. He further denied all the other suggestions put to him by Ld. Defence Counsel.
14. PW5 namely ASI Junaid in his examination in chief deposed that he deposited the samples i.e. two quarter bottles of illicit liquor with the label "Santara" bearing the seal of "SS" in the Excise Office, L-Block, ITO. In his cross-examination he testified that no photography of the samples regarding the same was conducted and No TA/DA was given to him for the same.
15. The allegations against the accused was that she was found in possession of illicit liquor bottles. The case of the prosecution is entirely based on the recovery allegedly effected from the accused person. The prosecution has relied heavily upon the presumption under Section 52 of the Act. To contend that in the present case, the burden was upon the accused to prove that she had not committed the offence under Section 33 of the Act and since the accused had failed to discharge the onus cast upon her, the accused should be found guilty in the present case. However, perusal of the Section 52 of the Delhi Excise Act, 2009 reveals that the presumption under the Section 52 can be raised only after the prosecution has discharged its initial onus as to the accused having been found in possession of illicit liquor. For the sake of convenience, Section 52 of the Act is reproduced herein under:
"52. Presumption as to commission 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.".
16. Hence, to avail the benefit of the presumption, it was still for the prosecution to prove that the illicit liquor was in fact recovered from the possession of the accused. The recovery was effected by police witnesses. All of the witnesses including the complainant are police witnesses. It is settled law, that when only police witnesses have been examined, their evidence must be thoroughly scrutinized.
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17. In present case, prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of liquor in this case, makes the prosecution version highly doubtful. The incident is stated to have happened at about 11:30 am and it is evident that none of the prosecution witnesses, could depose in their testimony that place of incident was not a public place and there was no public witness at that place at the time of alleged seizure and recovery of case property from the accused. Whereas perusal of site plan Ex. PW4/A reveals that place of seizure was a public place/public road. Further, these witnesses had failed to bring anything on record that they had tried to join independent public witness during the entire search and seizure proceedings. Therefore, it is clear that no efforts were made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
18. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi v. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had 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".
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
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"It therefore emerges that non-compliance of these provisions i.e., Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
19. Considering the aforesaid observations made by the higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above-mentioned facts create serious doubt on the case of the prosecution.
20. Further, as per evidence on record, the seal after use was not given to any independent public person. Even, no seal handing over memo is on record. PW1 himself admitted in his cross-examination that he did not prepare the same. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the Judgment of Ramji Singh v. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
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"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore, the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
21. It is evident that no handing over memo of the seal was prepared. Therefore, this court is of the considered opinion that link evidence concerning the seal movement was missing in this present case, which fact by itself is sufficient to cast a shadow a doubt on the authenticity of the prosecution case. Further there is no independent witness to the sealing of the case property. The liquor was with the possession of police officials only and the chances of tampering with the seal cannot be ruled out. It was an imperative task for the police officials to engage any public witness while sealing the case property. Further neither the IO nor the witnesses had made any reflection regarding the handing over memo of the seal. The seal was with in the possession of the police officials only and there is no clarity as to when the seal was handed over and to whom it was handed over. Therefore, it can be very well said that there are fair chances of tampering with the seal. Hence, it can be very well said that prosecution has failed to establish its case beyond reasonable doubt.
22. Further, 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 Digitally signed ISRA by ISRA ZAIDI Date: FIR No. 132/2019 Page 10 of 14 2026.05.16 State vs. Anju ZAIDI 15:22:32 +0530 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 arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal v. State 1987 (2) Crimes 29. No arrival entries have been placed on record to fortify the case of the prosecution by the IO. There is no independent witness to the seizure memo, which casts a serious doubt on story of prosecution.
23. For establishing the factum of recovery, the prosecution examined 05 witnesses out of which none were public witnesses. The public witnesses were not joined during the recovery of the alleged illicit liquor. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by any independent material witness. The recovery witness examined by the prosecution in the present case are police witnesses who are interested in the success of the prosecution case and therefore, the probability of them being guided by the 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 of the case to join the public witness. There is no independent witness to the seizure memo.
24. The non-joining of the public witness at the time of alleged recovery of the article creates doubt in the story of the prosecution as was held in Pawan Kumar v. Delhi Administration (1987 CC 585) Delhi High Court. In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the Digitally signed FIR No. 132/2019 Page 11 of 14 ISRA by ISRA ZAIDI Date:
State vs. Anju 2026.05.16 ZAIDI 15:22:39 +0530 proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavourable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt. Reliance can be profitably placed on the judgment of Hon'ble SC of India in case of Pradeep Narayan vs. State of Maharashtra (AIR 1995 SC 1930) held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which has to go to the accused.
25. PW3 & PW4 deposed in their examination in chief that IO recorded the disclosure statement Ex.PW3/C of the accused. Perusal of the same reveals that accused has stated that she is engaged in selling illicit liquor for sustaining her family and that she was apprehended by the police officials. At this stage it is germane to mention section 27 of the Indian Evidence Act, 1872.
"Section 27 how much of information received from the accused may be proved- provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the facts thereby discovered may be proved.
In the case of Md. Inayatulla Vs. State of Maharashtra AIR 1976 SC483 it was held that for the application of section 27 of the IEA the statement must be split into its components and to separate the admissible portion. Only those components or portion which were the immediate cause of discovery would be relevant and rest must be rejected."
26. Disclosure statement cannot be admissible as there is no recovery pursuant to the disclosure statement and there is no independent witness to the same. Moreover, there is a doubt as to the recovery of the alleged quarter bottles of illicit liquor from the possession of the accused. Derivative use of custodial statement is not permissible in law. Disclosure statement is admissible only in evidence if something is recovered from the accused which is not within the Digitally signed ISRA by ISRA ZAIDI Date: 2026.05.16 FIR No. 132/2019 Page 12 of 14 ZAIDI 15:22:46 +0530 State vs. Anju knowledge of the police before recording the disclosure statement of the accused. Hence, the same becomes inadmissible in law.
27. Perusal of site plan reveals that it was not even signed by the complainant. The evidentiary value of the spot map/sketch map prepared by the investigating officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is based on the actual observation of the officer at the crime scene, it is treated as direct evidence and is admissible u/s 60 of Indian Evidence Act, 1872. In the case of Shingara Singh v. State of Haryana (2003)12 SCC 758 it was held that any defect in the site plan creates a doubt regarding the place of occurrence and accused is entitled to get the benefit of doubt. The site plan prepared by the IO Ex. PW4/A was not even signed by the complainant. It is doubtful that the site plan was prepared at the instance of the complainant.
28. One another fact which this Court considers necessary to discuss here is that as per the story of the prosecution 48 quarter bottles of illicit liquor were recovered. IO took two quarter bottle from the lot as sample. Therefore, at this stage prosecution has failed to establish beyond reasonable doubt that those remaining quarters were containing the liquor as in absence of any sample that fact that other quarters were containing illicit liquor remained unestablished. It was the bounden duty of the police to take out the samples from each of the bottle. There are serious lapses in the investigation conducted by the police which has made the story of prosecution more doubtful.
29. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovery and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI (178 (2011) DLT 529). It was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. Prosecution could not prove beyond reasonable doubt complicity of accused. In a criminal case the burden of proof is on Digitally signed Page 13 of 14 ISRA by ISRA ZAIDI FIR No. 132/2019 Date: State vs. Anju 2026.05.16 ZAIDI 15:22:54 +0530 the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt.
30. On perusal of the documents and consideration of submissions, it is the considered opinion of the court that prosecution has not been able to prove the case against the accused beyond reasonable doubt and the accused is entitled to be given the benefit of doubt. Accused Anju is hereby acquitted for the offence punishable under section 33 of the Excise Act.
Pronounced in the open Court on 16.05.2026. Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2026.05.16 15:23:00 +0530 (ISRA ZAIDI) JUDICIAL MAGISTRATE FIRST CLASS 04/NORTH-EAST/KKD/DELHI This judgment contains 14 pages and each page bears my signature.
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