Delhi District Court
Fir No.539/2020 (State vs . Sarika) Ps Sagarpur on 21 August, 2023
FIR No.539/2020 (State vs. Sarika) PS Sagarpur
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
PATIALA HOUSE COURT,
NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 6599/2021
Unique Case ID No. -: DLND02-012060-2021
FIR No. -: 539/2020
Police Station -: SAGARPUR
Section(s) -: 33 Delhi Excise Act
In the matter of -
STATE
VS.
SARIKA
W/o Sh. Sunny,
R/o H. No. RZ-305, Bhrampuri, Sagapur,
New Delhi.
.... Accused
1. Name of Complainant : Ct. Dharmender
2. Name of Accused : Sarika
3. Offence complained of or proved : 33 Delhi Excise Act, 2009
4. Plea of Accused : Not guilty
5. Date of commission of offence : 05.06.2020
6. Date of Filing of chargesheet : 31.08.2021
7. Date of Reserving Order : 08.08.2023
8. Date of Pronouncement : 21.08.2023
9. Final Order : ACQUITTED
Page 1 of 17
FIR No.539/2020 (State vs. Sarika) PS Sagarpur
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Sh. Pradeep Nagar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
A. FACTUAL MATRIX:-
1. Briefly stated, the case of the prosecution is that on 05.06.2020, at about 08:20 PM, at Gali, in front of H. No. RZ-305, Bra-
hampuri, within the jurisdiction of PS Sagarpur, accused Sarika was found in possession of one white colour plastic katta containing 96 quarter bottles of illicit liquor, each bottle having label of 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml' and that, the accused was found in possession of such liquor without any licence or permit, thereby, com- mitting an offence punishable u/s 33 of Delhi Excise Act, 2009.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (here- inafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under section 33 of Delhi Excise Act, 2009 was framed upon ac- cused to which she pleaded not guilty and claimed trial Page 2 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the accused, the prosecution led the following oral and documentary evidence.
ORAL EVIDENCE
PW 1 : HC Dharmender (Complainant)
PW 2 : HC Dinesh Kumar (IO)
HC Aishpal (deposited the sample at
PW 3 :
Excise Laboratory)
PW 4 : W/Ct. Anita (alongwith IO)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Complaint of HC Dharmender Kumar.
Ex. PW1/B : Seizure memo.
Ex. PW1/C : Site plan.
Ex. P1 (Colly.) : Order permitting destruction of case property Photograph of one white colour plastic katta Ex. P2 :
containing case property Sample bottle of illicit liquor having label of Ex. P3 : 'Asli Santara Masaledar Desi Sharab for sale in Haryana only, 180 ml' Ex. PW2/A : Form M-29 Ex. PW2/B : Rukka Ex. PW2/C : Disclosure statement of the accused Ex. PW2/D : Notice u/s 41A CrPC served upon the accused Mark PW3/A : Road Certificate DOCUMENTS ADMITTED UNDER SECTION 294 CrPC Ex. A1 : FIR No. 539/2020 Ex. A2 : Certificate u/s 65 IEA supporting the FIR.
Ex. A3 : GD No. 88A dated 05.06.2020.
Ex. A4 : GD No. 101A dated 05.06.2020.
Page 3 of 17
FIR No.539/2020 (State vs. Sarika) PS Sagarpur
Ex. A5 : GD No. 57A dated 28.06.2020
Ex. A6 : GD No. 82A dated 28.06.2020
Excise Report bearing no. SZD014099 dated
Ex. A7 :
18.09.2020.
4.1 PW1/Complainant HC Dharmender Kumar deposed on
oath that on 05.06.2020, at about 08:20 PM, while patrolling in the Gali in front of H. No. RZ-305, Brahmpuri, Sagarpur, he noticed a lady sitting with a white colour plastic katta, who, upon noticing him, fled into nearby Gali leaving behind the plastic katta. He stated that he managed to identify the said lady as Sarika W/o Sunny. He stated that upon opening of the said plastic katta, it was found containing illicit liquor. He stated that the infor-
mation of the said recovery was relayed to PS Sagarpur, upon which IO/HC Dinesh Kumar reached the spot. He stated that the illicit liquor was handed over to IO/HC Dinesh Kumar. He stated that the IO/HC Dinesh Kumar recorded his complaint and also asked four to five public persons to join the investigation, however, they all left the spot, citing their personal difficul- ties. He stated that the IO/HC Dinesh Kumar opened and checked the plas- tic katta, which was found to contain 96 quarter bottles of illicit liquor and each bottle was labelled as 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that the IO/HC Dinesh Kumar drew out a sample from the said katta and marked it as Serial no. 1A. He stated that the IO left the remaining bottles inside the plastic katta recovered from the accused and, marked it as Serial no.1. He stated that the sample bottle so drawn out, and the plastic katta were tied separately with a white colour cloth and duly sealed with the seal of 'MM'. He further stated that the case property i.e. the sample alongwith the plastic katta containing the remain- ing quarter bottles of illicit liquor, were seized by the IO at the spot. He Page 4 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur stated that after the seizure, the seal of 'MM' was handed over to him by the IO/HC Dinesh Kumar. He stated that the IO/HC Dinesh Kumar filled out the form M-29. He stated that thereafter, rukka was prepared by IO/HC Dinesh Kumar upon the basis of his complaint and the said rukka was handed over to him to be taken to the PS, for the registration of FIR. He stated that pursuant to the registration of the FIR, the IO/HC Dinesh Kumar prepared the site plan at his instance and thereafter, case property was de- posited in the malkhana. PW1/Complainant HC Dharmender Kumar cor- rectly identified the accused. He also correctly identified the photograph of the plastic katta bearing the case FIR details and the sample of the quarter bottle of illicit liquor so seized, produced in unsealed condition.
During his cross-examination, PW1/Complainant HC Dharmender Kumar admitted that the spot from where illicit liquor was recovered from possession of the accused was a residential area, where public persons were available. He admitted that no notice to join the recov- ery proceedings was given to any of the public persons, who refused to join the investigation. He admitted that the seal of 'MM' belongs to ASI Man- mohan, who has never joined the investigation and has not even been cited as a prosecution witness. He further admitted that no seal handing over memo was prepared by the IO at the time of handing over seal of 'MM' to him. He admitted that no seal as imposed by the IO during seizure, was visible on the katta shown in photograph ex.P2. He denied the suggestion that he was not on patrolling duty and all the documents have been pre- pared by the IO. He further denied the suggestion that no illicit liquor was recovered from the possession of the accused.
Page 5 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur
4.2 PW2/IO HC Dinesh Kumar deposed that on 05.06.2020,
upon receiving information vide DD No. 101A regarding recovery of illicit liquor, he reached at site of occurrence, i.e. Gali in front of H. No. RZ-305, Brahampuri, where Ct. Dharmender Kumar was found present, who handed him over one white colour plastic katta filled with bottles of illicit liquor and told him that the said recovery of illicit liquor was effected from the ac- cused Sarika W/o Sh. Sunny. PW2/IO HC Dinesh Kumar recorded the complaint of Ct. Dharmender Kumar and also asked four to five public per- sons to join the investigation, however, they all left the spot, citing their personal difficulties. Thereafter, he opened and checked the plastic katta, which was found to contain 96 quarter bottles of illicit liquor and each bot- tle was labelled as 'Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml'. He stated that he drew out a sample from the said katta and marked it as serial no. 1A while the remaining bottles were left inside the same plastic katta the katta was marked as serial no. 1. He stated that the sample bottle and the plastic katta were tied separately with a white colour cloth and duly sealed with the seal of 'MM'. He further stated that the case property i.e. the sample alongwith the plastic katta containing the remaining quarter bottles of illicit liquor, were seized by the him at the spot. He stated that after the seizure, the seal of 'MM' was handed over by him to Ct. Dharmender Kumar. He stated that the he filled out the form M-
29. He stated that thereafter, rukka was prepared upon the basis of the com- plaint of Ct. Dharmender Kumar and the said rukka was handed over to Ct. Dharmender Kumar for registration of FIR. He stated that pursuant to the registration of the FIR, he prepared the site plan at the instance of Ct. Dhar- mender Kumar. He further stated that the case property alongwith Form M- 29 was deposited in the malkhana. He further deposed that on 28.06.2020, Page 6 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur he again joined the investigation and he alongwith W/Ct. Anita reached at address of the accused situated at RZ-305, Brahmpuri, Sagarpur, New Delhi, where he examined the accused and recorded her disclosure state- ment of the accused and also served notice u/s. 41A CrPC upon the ac- cused. He deposed that on 02.07.2020, upon his directions, Ct. Aishpal ob- tained sample quarter bottle so seized in the present case from MHC(M) and got it deposited with Vikas Bhawan, ITO for it's chemical examination pursuant to which the Excise Report was obtained. After completion of in- vestigation, he prepared the charge-sheet and submitted the same before the court. Accused Sarika was exempted from her personal appearance and her identity was not disputed by the Ld. Counsel for the accused for the pur- poses of trial. The production of the sample bottle of illicit liquor (case property) for his identification, was dispensed with, as the sample of the case property already stood produced and was exhibited as Ex.P3 before the Court. He correctly identified the photograph of the plastic katta bear- ing the case FIR details.
During his cross-examination, PW2/IO HC Dinesh Kumar admitted that the spot from where illicit liquor was recovered from posses- sion of accused was a residential area, where public persons were available. He admitted that no notice u/s 160 Cr.P.C. was served upon the public per- sons. He further admitted that no seal handing over memo was prepared by him at the time of handing over seal of 'MM' to Ct. Dharmender. He ad- mitted that the accused was not arrested at the spot. He denied the sugges- tion that the case property has been falsely planted upon the accused.
4.3 PW3/HC Aishpal proved copy of Road Certificate bearing no. 105/21/20 dated 02.07.2020, vide which he obtained a sample quarter bottle duly sealed with the seal of 'MM' and deposited the same with Ex-
Page 7 of 17FIR No.539/2020 (State vs. Sarika) PS Sagarpur cise Control Laboratory, Vikas Bhawan, ITO, New Delhi, upon the instruc- tions of the IO/HC Dinesh Kumar. He further stated no tampering was done to the sample of the case property till the time it remained in his custody.
During his cross-examination, PW-3/HC Aishpal admitted that he did not sign the register no. 19, while obtaining the case property from the concerned MHC(M). He denied the suggestion that the Road Cer- tificate was forged and fabricated document.
4.4. PW4 W/Ct. Anita deposed that on 28.06.2020, she joined the investigation alongwith IO/HC Dinesh Kumar and they reached at the site of occurrence i.e. RZ-305, Brahmpuri, Sagarpur, New Delhi, where IO ex- amined the accused in her presence and recorded disclosure statement of the accused and also served notice u/s. 41A CrPC upon the accused. She correctly identified the accused.
During her cross-examination, PW2 W/Ct. Silochana admit- ted that no recovery was effected from the accused in her presence. She de- nied the suggestion that disclosure statement of the accused was a fabri- cated document prepared by the IO in order to falsely implicate the accused in the present case.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
5. On 08.08.2023, statement of accused Sarika u/s 313 Cr.PC was recorded, wherein she denied the case of the prosecution and stated that she has been falsely implicated in the present case. She chose not to lead defence evidence and hence, DE was closed and matter was fixed for final arguments.
Page 8 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur
ARGUMENTS-
6. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offence u/s 33 Delhi Excise Act and the relevant provision of Delhi Excise Act.
On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no independent public witnesses were made a part of the search and seizure of the case property, despite the fact that the alleged illicit liquor was recovered from a public place. It has been argued that the case property was falsely planted upon the accused and as such, she is liable to be acquitted.
INGREDIENTS OF THE OFFENCE-
7. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfil all the essential ingredients of the offence. Section 33 of the Excise Act, 2009 is reproduced for ready reference-
"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 Page 9 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur 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 lath rupees"
8. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of in- nocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused.
9. In the case such as the present one, the fact of recovery, seizure, sampling and the chain of custody is of utmost importance to bring home the guilt of an accused. The case of the prosecution is that one plastic katta containing 96 quarter bottles of illicit liquor were seized from the ac- cused. Recovery of the alleged illicit liquor which the accused was suppos- edly in possession of, without a valid license, was effected from a residen- tial area at 08:20 PM, however no public person was made a witness to the said recovery. It is not disputed by the prosecution witnesses on whose tes- timony the prosecution seeks to rely, that at the time of recovery of the il- licit liquor, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the proceedings by the police.
10. The importance of joining public persons in the recovery pro- ceedings has time and again been emphasised by the judicial pronounce- ments. At this juncture, reference is made to the judgement of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
Page 10 of 17FIR No.539/2020 (State vs. Sarika) PS Sagarpur "4. It is well settled principle of law that the Investigating Agency should join independent witnesses at the time of recovery of contra- band articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.
5. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have noted down their names and addresses etc. and would have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
11. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"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 cir- cumstances 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 con- sider whether the weight of evidence is in any manner affected be- cause 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 corrob- oration. This again depends on question whether the official has de- liberately failed to comply with these provisions or failure was due to Page 11 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
12. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of re- covery. In the present case, 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. As per documentary evidence, the plastic katta containing illicit liquor were recovered at 08:20 PM. The rukka Ex. PW2/B was thereafter prepared and sent to PS Sagarpur, whereby the FIR (Ex.A1) was registered at 10:41 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 08:20 PM till atleast 10:41 PM. However, despite being at the spot for more than two hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100(4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public wit- nesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
13. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the po-
Page 12 of 17FIR No.539/2020 (State vs. Sarika) PS Sagarpur lice in the present case cannot be ruled out. Reliance is placed upon the Judgement of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
14. Further, as per the testimonies of the prosecution wit- nesses, PW2/IO HC Dinesh Kumar opened the plastic katta containing illicit liquor, and drew out one quarter bottle as a sample. Thereafter, the sample as well as the katta containing the remaining quarter bot- tles, were tied separately with a white coloured cloth and were sealed with the seal of 'MM'. PW2/IO HC Dinesh Kumar stated that after use, seal was handed over to Ct. Dharmender Kumar. In this regard, there is no separate seal handing over or seal taking memo on record. Thus, the case property has been transferred from one official to an- other, however, no DD entry has been made with regard to the same. Further, the seal remained with the junior police official as, it is not the case of the prosecution that the seal was handed over to any inde- pendent person after use. Pertinently, there is no documentary evi- dence to show if the seal was deposited in the malkhana, so that the same was outside the reach of the IO/other police officials. As per the testimony of prosecution witnesses PW1 and PW2, only the case property was deposited in the malkhana and there is no entry of de- posit of the seal. What was the fate of the seal remains unexplained. In such circumstances, the possibility of interference or tampering of the seal and the contents of the seized case property cannot be ruled out. Reliance is placed upon the judgement of the Hon'ble High Court of Page 13 of 17 FIR No.539/2020 (State vs. Sarika) PS Sagarpur Delhi in the case of Safiullah v. State (Delhi Admn.) 1992 SCC On- Line Del 516 :(1993) 49 DLT 193. Therefore, it is safe to conclude that the prosecution has NOT been able to prove safe and tamper- proof custody of the case property in the present case.
15. It is also to be noted that PW1/HC Dharmender Kumar has deposed that after intimation of recovery of illicit liquor was sent to the police station, the IO/HC Dinesh Kumar came to the spot, took out the illicit liquor and prepared the seizure memo. He also sealed the remaining property. Thereafter, the rukka was prepared by IO/HC Di- nesh Kumar and was handed over to PW1/HC Dinesh Kumar for reg- istration of FIR. Similar is the deposition of the PW2 IO/HC Dinesh Kumar. In the consistent version of the prosecution witnesses regard- ing the chronology of events, the seizure memo Ex. PW1/B was pre- pared before the registration of the FIR. However, it is observed that the seizure memo contains the description and number of the FIR. If the FIR was not in existence at the time of preparation of seizure memo than it is a open glaring question as to how the FIR number sur- faced on Ex.PW1/B. This puts the genuineness of the seizure memo Ex. PW1/B under a cloud of suspicion and gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the il- licit liquor or number of the said FIR was inserted in the seizure memo 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 case property in the manner alleged by the prosecution. Reliance is being placed upon the judgment of Hon'ble High Court of Delhi in the case of Giri Raj v. State, 1999 SCC On-
Page 14 of 17FIR No.539/2020 (State vs. Sarika) PS Sagarpur Line Del 1030. That being said, the benefit arising out of a doubtful recovery of case property must necessarily go to the accused.
16. Moreover, in the considered opinion of this court, even the identification of the case property is not established. It is stated by the pros- ecution that the case property has been destroyed on 21.02.2022, as per the directions of the Assistant Commissioner (Excise) contained in order bear- ing no. Con/Misc/2022/5038-5039 dated 09.02.2022. In this regard, even though Section 60 of the Delhi Excise Act provides that non-production of case property does not affect the conviction, however, at the same time, the provision also lays down that samples and photographs of the confiscated property are to be preserved to meet evidentiary requirements. During the examination of prosecution witnesses, one apparently leaking quarter bot- tle, having the label of "Asli Santra Masaledar Deshi Sharab for sale in Haryana only, 180 ml" was produced in unsealed condition, for the pur- poses of identification. Further, only one photograph capturing a plastic katta in unsealed condition purportedly containing the remaining quarter bottles, was produced for identification of the case property. It is pertinent to mention that no photograph of the entire lot of case property or any video recording as to the destruction of the case property was produced by the prosecution. Further, it stands admitted by PW1 in his cross-examina- tion that the plastic katta showing case property in photograph Ex. P2 does not bear any seal as was imposed by the IO during seizure proceedings. In such circumstances, the standard of proof beyond reasonable doubt, cannot be said to be met. Accordingly, the identification of the case property is not established and this fact becomes fatal to the case of prosecution, going to its roots.
Page 15 of 17FIR No.539/2020 (State vs. Sarika) PS Sagarpur
17. Ld. Counsel for the accused has argued that the case of the prosecution suffers from infirmities, the benefit of which must accrue to the accused. Among many other inconsistencies as detailed above, Ld. Counsel for the accused, has during the course of arguments pointed out that the prosecution has failed to endorse in the rukka PW2/B, the time at which the rukka was sent to the PS for registration of FIR. He has argued that this omission to mention time of sending of rukka to the PS, indeed proves the case of the accused that all the documents of the present case were prepared by the IO sitting at one place and that the case property has been planted upon the accused.
18. In my opinion, the circumstances mentioned above are suffi- cient to punch holes in the version of the prosecution. The case of the pros- ecution cannot be said to be proved on the requisite threshold. Therefore, considering the above discussion, the inevitable conclusion is that the pros- ecution has failed to prove beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. While coming to this conclu- sion, this Court is also conscious of the presumption enshrined under Sec- tion 52 of the Delhi Excise Act. However, the same is not applicable in the present case as the recovery from possession of the accused, which is the condition precedent for invoking the presumption, is not proved in the present case.
CONCLUSION
19. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33 of the Delhi Excise Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution.
Page 16 of 17FIR No.539/2020 (State vs. Sarika) PS Sagarpur The recovery of the illicit liquor from the possession of the accused, which was the essential ingredient of the offence, is also highly doubtful. Other inconsistencies in the version of the prosecution have crumbled the whole case of the prosecution.
20. Resultantly, the accused SARIKA W/o SH. SUNNY is enti- tled for benefit of reasonable doubt and is hereby found not guilty. She is ACQUITTED of the offence under Section 33 of the Delhi Excise Act, 2009.
Announced in the presence of
the accused in open court (Isha Singh)
MM-03/PHC/NDD/21.08.2023
Certified that this judgment contains 17 pages and each page bears my signature.
(Isha Singh) MM-03/PHC/NDD/21.08.2023 Page 17 of 17