Delhi District Court
State vs Chandni on 4 March, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
CHANDNI
CASE No. 11766/2022
FIR No. 331/2022
P.S. Khyala
U/S- 33/38 Delhi Excise Act,
2009
1.Date of commission of offence : 21.03.2023
2. Name of the Complainant : Ct. Sudhir
3. Name of the accused, and his parentage and residence: Chandni W/o Sh. Sonu, R/o H.No. MS-4, Raghubir Nagar, Khyala, Delhi
4. Date when judgment : 04.03.2025 was reserved
5. Date when Judgment : 04.03.2025 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. 331/2022 State Vs Chandni 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 21.03.2022 at about 08.45 PM in front of H.No. MS-4, Raghubir Nagar, Khyala, Delhi within the jurisdiction of PS - Khyala, accused Chandni was found in possession of one plastic sack containing 41 quarter bottles of 'Race 7 Metro Liquor for sale in Haryana (180 ml)' 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 21.09.2022 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 21.09.2022. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 15.05.2023.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 08.07.2023 to which she pleaded not guilty and claimed trial. On 08.07.2023, proceedings u/s 294 CrPC were conducted wherein the accused admitted the Copy of FIR i.e. 331 dated 21.03.2022, certificate u/s 65 B of IEA, DD No.10 A dated 21.03.2022.
FIR No. 331/2022 State Vs Chandni 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.
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examination-in- cross-
witnesses Evidence. chief. examination
PW- HC Sandeep NIL 26.09.2023 26.09.2023
1
PW- Ct. Sudhir (i) Recording 19.01.2024 19.01.2024
2 of statement
of PW-2 -
Ex.PW2/A
(ii) Seizure
memo -
Ex.PW2/B
(iii) Site plan
- Ex.PW2/C
(iv)
Disclosure
statement of
accused -
Ex.2/D
(v)
Confiscation
order and
destruction
order
FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 3
alongwith
photograph
of case
property -
Ex.A2
(colly)
(vi) case
property -
Ex.A1
PW- W/ Ct. NIL 19.01.2024 19.01.2024
3 Vineeta
PW- HC Ashok (I) 04.09.2024 04.09.2024
4 Kumar Photocopy of
DD entry of
register
no.19 at
point A and
concerned
RC at point
B-
Ex.PW4/A
(OSR)
PW- HC Parveen NIL 04.09.2024 04.09.2024
5 Kumar
2.2 PW-1 was HC Sandeep who deposed that on 18.04.2022 he was
posted as constable at PS Khyala and was on duty. On that day, he took the case property in the present case from the MHC (M) vide RC No. FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 4 125/21/22 i.e. one quarter bottle of 'RACE 7 Metro Liqour for sale in Haryana only 180 ml' duly sealed with the seal of 'PK' and the same was deposited in the Excise Office at ITO. Till the case property remained in his possession, no tampering was done. The witness was duly cross examined by Ld. Counsel for the accused.
2.3 PW- 2 was Ct. Sudhir who deposed that on 21.03.2022, he was posted at PS Khyala as constable. On that day, he was on patrolling duty in the beat area. At around 08.45 pm, he reached in front of H No. MS-4, Raghubir Nagar, Khyala, Delhi and saw a lady sitting with a plastic bag in her hand and looking for customers. Upon seeing him, she tried to hide the said bag. Upon questioning regarding the bag, she could not give satisfactory reply. Finding her suspicious, he checked the said plastic bag and found illicit liquor inside it. Thereafter, he asked the name and other particulars of the said lady. She disclosed her name to be Chandni. Thereafter he informed about the recovery of illicit liquor in the Police Post Raghubir Nagar and HC Parveen Kumar along with W/Ct Vineeta were handed over the custody of accused alongwith the above mentioned plastic bag containing illicit liquor to them. Thereafter, IO checked the said plastic bag and it was found containing 41 quarter bottles of illicit liquor bearing mark of 'Race 7 Metro liquor for sale in Haryana only'. IO recorded statement of PW-2. Out of those liquor bottles, one quarter bottle was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'PK'. The rest FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 5 of the quarter bottles were put in the same plastic bag moored with the white cloth and duly sealed with the seal of 'PK'. The said plastic bag was given serial no.1 and the sample quarter bottle was given serial no.1A. After sealing, the seal was handed over to PW-2. Form M-29 was prepared by the IO and the abovesaid liquor as well as sample were seized vide seizure memo. Thereafter, IO prepared the tehrir and the same was handed over to him for registration of FIR. PW-2 went to the police station and got the FIR registered. After registration of FIR, PW-2 returned back at the spot and handed over the copy of FIR and original tehrir to IO. IO prepared the site plan. Then IO recorded the disclosure statement of accused. Accused was served notice u/s 41A CrPC to join the investigation. The witness was duly cross examined by Ld. Counsel for the accused.
2.4 PW-3 was W/Ct. Vineeta who deposed that on 21.03.2022, she was posted at PS Khyala as constable. On that day, Ct. Sudhir informed the DO about the recovery of illicit liquor from a lady. Thereafter, she along with IO HC Parveen Kumar went to the spot where Ct. Sudhir handed over the accused alongwith a plastic bag containing illicit liquor.
IO asked the name and other particulars of the said lady. She disclosed her name to be Chandni. Thereafter, IO checked the said plastic bag and it was found containing 41 quarter bottles of illicit liquor bearing mark of 'Race 7 Metro liquor for sale in Haryana only'. IO recorded statement of Ct. Sudhir. Out of those liquor bottles, one quarter bottle was taken FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 6 out by the IO as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'PK'. The rest of the quarter bottles were put in the same plastic bag moored with the white cloth and duly sealed with the seal of 'PK'. The said plastic bag was given serial no.1 and the sample quarter bottle was given serial no.1A. After sealing, the seal was handed over to PW-3. Form M-29 was prepared by the IO and the abovesaid liquor as well as sample were seized vide seizure memo. Thereafter, IO prepared the tehrir and the same was handed over to Ct. Sudhir for registration of FIR. He went to the police station and after registration of FIR, he returned back at the spot and handed over the copy of FIR and original tehrir to IO. IO prepared the site plan. Then IO recorded the disclosure statement of accused. Accused was served notice u/s 41A CrPC to join the investigation. The witness was duly cross examined by Ld. Counsel for the accused.
2.5 PW-4 was HC Ashok Kumar who deposed that on 21.03.2022, he was posted at PS Khyala as HC and was on duty as MHC(M). On that day, he had deposited the case property and relevant documents pertaining to the present case in the malkhana PS Khyala. He had brought the record register no.19 and 21 alongwith its photocopy of concerned DD entry of register no.19 at point A and concerned RC is at point B. The said photocopy was Ex.PW4/A(OSR). The witness was duly cross examined by Ld. Counsel for the accused.
FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 7 2.6 PW-5 was HC Praveen Kumar who deposed that on 21.03.2022, he was posted at PS Khyala as Head constable. On that day, upon receiving information vide DD no.23 PP Raghubir Nagar, he alongwith W/Ct. Vinita reached the spot at H.No. MS-4, Raghubir Nagar, Khyala, Delhi where he met Ct. Sudhir who had handed him over the custody of accused Chandni alongwith case property i.e. a plastic katta recovered from her. PW-5 checked the said plastic bag and it was found containing 41 quarter bottles of illicit liquor bearing mark of 'Race 7 Metro liquor for sale in Haryana only'. PW-5 recorded the statement of Ct. Sudhir. Out of those liquor bottles, one quarter bottle was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'PK'. The rest of the quarter bottles were put in the same plastic bag moored with the white cloth and duly sealed with the seal of 'PK'. The said plastic bag was given serial no.1 and the sample quarter bottle was given serial no.1A. After sealing, the seal was handed over to him. Form M-29 was prepared by him and the abovesaid liquor as well as sample were seized vide seizure memo. Thereafter, he prepared the tehrir and the same was handed over to Ct. Sudhir for registration of FIR. He went to the police station and got the FIR registered. After registration of FIR, he returned back at the spot and handed over the copy of FIR and original tehrir to PW-5. PW-5 prepared the site plan and recorded the disclosure statement of accused as narrated by her. Accused was served notice u/s 41A CrPC to join the investigation and was released on the spot. Then, PW-5 brought the case property to the police station and FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 8 deposited the same in the malkhana. PW-5 had obtained the Excise result from Vikas Bhawan and placed it on record. PW-5 had recorded statement of all the witnesses u/s 161 CrPC. After completion of investigation, he filed the chargesheet in the concerned court. The witness was duly cross examined by Ld. Counsel for the accused.
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 04.10.2024 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.
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 FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 9 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 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 FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 10 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, several doubts have been created over the factum of alleged recovery from the accused. To begin with, PW-1 gave his statement during examination in chief in the first person plural, implying that he was on patrolling duty with some other police officer when he apprehended the FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 11 accused. He also could not submit any departure entry regarding his patrolling which would have brought him to the spot of recovery. It is also 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-2, PW-3 & PW-5 in their cross examination that the area was a public residential place and public persons were asked to join the investigation, but no formal notice was served on them nor their particulars were noted down by the IO.
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 FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 12 available or is willing to be a witness to the search, to attend and 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 FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 13 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 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) FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 14 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 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 Moreover, there are other discrepancies. For instance, PW-2 as well as PW-3 stated that statement of PW-2, form M-29 and seizure memo were prepared before the preparation of the tehrir, however, in their respective cross examinations they both stated that all these documents were prepared after the registration of FIR, raising the question as to on what documentary basis the tehrir was prepared. PW-3 even admitted that she had no role in the present case and the IO had obtained her signature on all the documents at the police station. This raises several doubts over the integrity of the investigation and lends credence to the argument of the defence that recovery was planted and all the proceedings were conducted at the police station itself. While PW-2 & PW-3 state that all the police officers had left the spot together at 01.30 am, PW-5 maintained that he had left the spot at 01.30 am. These differences were never reconciled.
FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 15 5.8 Additionally, as per the examination in chief of all three recovery witnesses as well as cross examination of PW-5, the seizure memo in the present case is stated to have been made prior to preparation of tehrir and registration of FIR. The testimony of PW-2 & PW-3 is vitiated as the said memo does not bear any particulars of the FIR in question.
5.9 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. In their respective testimonies, PW-2, PW-3 & PW-5 have all claimed that the seal after use was handed over to them, in the case of PW-5 implying that he had handed over the seal to himself. In the cross examination, however, PW-2 is the one who claims to have handed over the seal to the IO after the completion of case proceedings. As per admission of the IO in his cross examination, no seal handing over memo had been prepared, neither is any mention of returning memo made. 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 shall work in the favour of the accused.
5.10 Most importantly, the very existence of violation of the excise FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 16 policy has been brought into question as only one quarter bottle among those seized was 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 one bottle 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.
5.11 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 loopholes and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 17 convict the accused merely on the basis of testimony of the police officials. Hence, accused Chandni W/o Sh. Sonu, R/o H.No.MS-4, 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 COURT ON 04.03.2025 SUKRITI Digitally signed by SUKRITI SINGH SINGH Date: 2025.03.10 (SUKRITI SINGH) 16:28:11 +0530 JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 18 pages, all signed by the presiding officer SUKRITI Digitally signed by SUKRITI SINGH SINGH Date: 2025.03.10 16:28:07 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 331/2022 State Vs Chandni U/s 33/38 Delhi Excise Act 18