Delhi District Court
State vs Madhu on 10 March, 2025
i
IN THE COURT OF MS. PAYAL SINGAL
JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL,
TIS HAZARI COURTS, DELHI
State v. Madhu
FIR No. 572/2016
PS. Burari
U/s. 33 Delhi Excise Act
Cr. Case No. 4254/2019
JUDGMENT
1) CNR Number of the case : DLCT02-0085812019
2)The date of commission of offence : 14.11.2016
3) The name of the complainant : SI Robin Singh
4) The name & parentage of accused : Madhu, W/o Sh. Pawan Kumar
5) Offence complained of : u/s 33 Delhi Excise Act, 2009
6) The plea of accused persons : Not guilty
7) Final order : Acquittal Date of Institution : 26.03.2019 Date of reservation : 10.03.2025 Date of Judgment : 10.03.2025 BRIEF FACTS:
1) The brief case of the prosecution is that on 14.11.2016 at about 12.25 pm at Kh. No. 804, near AXIS Bank, main 100 foota road, Burari, Delhi, within the jurisdiction of PS Burari, you were found in possession of 65 quarter bottles FIR No. 572/2016 , PS Burari Page No. 1 of 16 i of illicit liquor from your house and each bottle was having written in Hindi upon the lable "Grain based asli santara masaledar desi sharab" for sale in Haryana only 180 ml without having any requisite licence or permit and you thereby committed an offence punishable u/s 33 Delhi Excise Act, 2009.
2) After completion of the investigation, the chargesheet was filed in the court, upon which cognizance was taken u/s 33 Delhi Excise Act and after complying with the provisions of Section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), arguments on the point of charge were heard and the formal charge was framed u/s 33 Delhi Excise Act, 2009 against the accused Madhu on 19.11.2019 to which she pleaded not guilty and claimed trial. Thereafter, the case was proceeded further for prosecution evidence.
PROSECUTION EVIDENCE:
3) Before proceeding with the prosecution evidence, it is relevant to mention here that during the course of trial, the accused person had admitted the registration of FIR (Ex. AD1), Endorsement on Rukka (Ex. AD2), Certificate u/s 65B Indian Evidence Act (Ex. AD3), Chemical Analysis (Ex. AD4), without admitting the contents of the said documents. Thus, the said witnesses were not summoned.
4) Accordingly, to bring home the guilt of the accused, the FIR No. 572/2016 , PS Burari Page No. 2 of 16 i prosecution examined the remaining five witnesses in support of its case i.e. PW-1 W/HC Neetu, PW-2 HC Satender Poonia, PW-3 Inspector Robin Singh and PW-4 SI Vijay Kumar.Now, the testimonies of all these witnesses shall be discussed in detail one by one.
5) PW-1 W/HC Neetu deposed that on 14.12.2016, she was posted as W/Ct. At PS Burari. On the aforesaid date, an information regarding the recovery of the illicit liquor came at PS. Thereafter, the DO concerned W/ASI Jagroshani instructed her to departure at near Axis Bank, Burari, Delhi whereafter, she reached at the spot, where she met SI Robin Singh and Ct. Satender and made signal towards one house situated at Khasra no.804, near Axis Bank, Burari, and stated that they had the information regarding the selling the illicit liquor in the said house. SI Robin Singh requested the passer-byes to join the investigation but none agreed to join the investigation and left the spot without disclosing their name and address.
Without wasting any further time, SI Robin Singh with the help of her and Ct. Satender made search of said house. There was one lady available who disclosed her name as Madhu, W/o Pawan and in the search of said house, 65 quarter bottles of illicit liquor were recovered. SI Robin Singh took out one quarter of illicit liquor as sample from the 65 quarter bottles of illicit liquor and the same was kept in a white cloth and sealed with the seal of RS. The said sample was given the name of Mark S1 and the FIR No. 572/2016 , PS Burari Page No. 3 of 16 i remaining quarter bottles were kept in a while plastic sack and the mouth of the said plastic sack was tied with the help of a white cloth and sealed with the seal of RS. The said plastic sack was given the name Mark S2. Thereafter, SI Robin Singh filed the form M29 at the spot. Robin Singh also seized the case property i.e. plastic sack which contains 64 quarter bottles of illicit liquor vide Seizure Memo Ex.PWI/A bearing; SI Robin Singh also seized the sample of illicit liquor vide Seizure memo Ex.PW1/B. Thereafter, St Robin Singh prepared Tehrir and handed over the same to Ct. Satender for getting the FIR registered who left the spot and after some time, he alongwith SI Vijay Kumar returned to the spot. SI Robin Singh produced the accused alongwith case properties, seizure memos and form M29 before IO/SI Vijay Kumar. IO/SI Vijay Kumar prepared site plan at the instance of SI Robin Singh. Thereafter, IO relieved SI Robin Singh from the investigation. IO made inquiry with the accused and recorded her disclosure statement which is Ex.PW1/C; IO arrested the accused vide arrest memo which is Ex.PW1/D; IO instructed her to conduct the personal search of the accused and after personal search, IO prepared corresponding memo Ex.PW1/E. Thereafter, PW-1 deposed that she alongwith IO and Ct. Satender brought the accused and case property to the PS Burari. Case property was deposited in the malkhana of PS Burari. Thereafter, accused was taken to AAA hospital for medical FIR No. 572/2016 , PS Burari Page No. 4 of 16 i examination. After the same, accused was produced before the Court concerned and sent to JC. IO recorded her statement under Section 161Cr.PC at the PS. The said witness correctly identified the accused and the case property.
6) PW-2HC Satender deposed that on 14.11.2016, he was posted as Ct. at PS Burari. On the aforesaid date, he alongwith SI Robin Singh were performing an emergency duty and available at SP Burari. A DD No. 19 A was marked to S1 Robin Singh. Thereafter he alongwith SI Robin reached at Kh. No. 804 near Axis Bank main 100 foota road where they met with the caller and after making signal towards one house, he disclosed to SI Robin Singh that in the aforesaid house the illicit liquor was selling and if the raid would have been made in the said house, the illicit liquor could be recovered. The said caller stated that he does not want his identity to be disclosed whereafter, SI Robin Singh called to W/Ct Neetu at the spot. SI Robin Singh also asked the public person to join the raiding team but none agreed and left the spot without disclosing their names and address. Without wasting any further time, PW- 2 stated that he alongwith SI Robin and W/Ct Neetu went inside the said house where the accused namely Madhur W/o Sh. Pawan was there. They made search of the said house and 65 quarter bottles of illicit liquor were recovered. SI Robin Singh took out one quarter of illicit liquor as sample from the 65 quarter bottles of illicit liquor FIR No. 572/2016 , PS Burari Page No. 5 of 16 i and the same was kept in a white cloth and sealed with the seal of RS. The said sample was given the name of Mark S1 and the remaining quarter bottles were kept in a while plastic sack and the mouth of the said plastic sack was tied with the help of a white cloth and sealed with the seal of RS. The said plastic sack was given the name Mark S2. Thereafter, SI Robin Singh filed the form M29 at the spot. SI Robin Singh also seized the case property i.e. plastic sack which contains 64 quarter bottles of illicit liquor vide Seizure Memo Ex.PWI/A; SI Robin Singh also seized the sample of illicit liquor vide Seizure memo Ex.PWI/B. Thereafter, SI Robin Singh prepared Tehrir and handed over the same to him for getting the FIR registered whereafter, he left the spot and went to PS Burari where he handed over the tehrir to the concerned DO for the registration of FIR. After the registration of FIR, DO instructed him to hand over the computerized copy of FIR to SI Vijay Kumar who was available at the PS. Thereafter, PW-2 stated that he alongwith IO/SI Vijay Kumar returned to the spot. SI Robin Singh produced the accused alongwith case properties, seizure memos and form M29 before IO/SI Vijay Kumar. IO/SI Vijay Kumar prepared site plan at the instance of SI Robin Singh. Thereafter, IO relieved SI Robin Singh from the investigation. IO made inquiry with the accused and recorded her disclosure statement Ex.PW1/C; IO arrested the accused vide arrest memo Ex.PWI/D; IO instructed her to conduct the FIR No. 572/2016 , PS Burari Page No. 6 of 16 i personal search of the accused and after personal search, IO prepared corresponding memo Ex.PW1/E. Thereafter, PW-2 stated that he alongwith IO and W/Ct Neetu brought the accused and case property to the PS Burari. Case property was deposited in the malkhana of PS Burari. Thereafter, accused was taken to AAA hospital for medical examination. After the same, accused was produced before the Court concerned and sent to JC. IO recorded her statement under Section 161Cr.PC at the PS. The said witness correctly identified the accused and the case property.
7) PW-3 Inspector Robin Singh deposed that 14.11.2016, he was posted as SI at PS Burari. On that day on receiving the DD No. 19 A, he alongwith Ct Satender went to the spot i.e. Kh. No. 804 near Axis Bank, main 100 foota road, Burari, Delhi where they met with the caller who shared the secret information regarding the sale of illicit liquor from the abovesaid building and pointed towards it. The caller wanted to keep his identity secret and was not willing share his name and address. Therefore, his identify has kept secret. Thereafter, PW-3 stated that he called W/Ct Neetu to the spot and he also requested to public persons to join the investigation but none agreed. Thereafter, he alongwith staff went inside the said building and found 65 quarter bottles of illicit liquor from the possession of accused lady who disclosed her name is Madhu. As per the tag on the quarter bottles, the brand was FIR No. 572/2016 , PS Burari Page No. 7 of 16 i "asli santara masaledar desi sharab, for sale in Haryana Only". PW-3 stated that he seized the said liquor i.e. 64 quarter bottles by keeping them in white plastic sack and sealed its mouth with the seal of RS and gave it mark S2. The sample quarter bottles was sealed with the seal of RS, gave it mark S1 and seizure memo was prepared Ex. PW1/B; PW-3 stated that he handed over the seal to Cr Satender. Form M-29 was prepared by him Ex. PW3/A. Thereafter, PW-3 deposed that he prepared the rukka Ex. PW3/B and handed over the rukka to Ct Satender who left the spot for registration of FIR. After registration of FIR, the further investigation in the present matter was marked to SI Vijay Kumar who came to the spot alongwith Ct Satender. PW-3 deposed that he handed over the accused, case property, documents to second IO SI Vijay Kumar. IO prepared the site plan at his instance whereafter, he left the spot and on the same day and IO recorded his statement. The said witness correctly identified the accused and the case property.
8) PW-4 SI Vijay Kumar deposed that on 14.11.2016, he was posted as SI at PS Burari. On the aforesaid date, he was available at the PS at about 1.00 pm, Ct Satender handed over to him the computerized copy of FIR alongwith original tehrir. Thereafter, he alongwith him reached at Kh. No. 804 near Axis Bank main 100 foota road, Burari where they met with SI Robin, W/Ct Neetu who produced the accused Madhu also handed over the case property in a FIR No. 572/2016 , PS Burari Page No. 8 of 16 i sealed condition. SI Robin narrated the whole incident to him whereafter, he prepared site plan at the instance of SI Robin; he made inquiry with the accused and arrested her vide arrest memo Ex.PWI/D. PW-4 deposed that at his instructions, W/Ct Neetu conducted the personal search of the accused and he prepared corresponding memo Ex.PW1/E; he also recorded disclosure statement of the accused Ex. PWI/C. Thereafter, PW-4 deposed that he alongwith other staff brought the accused alongwith case property to the PS Burari. The case property was deposited into the malkhana of PS Burari. After the medical examination of the accused, she was produced before the concerned court and sent her into the JC. Then, PW-4 stated that on 13.04.2018, at his instruction, Ct Ajay received the sample of the illler liquor from the MHC(M) and deposited the same to the Excise Lab, Vikas Bhawan vide road certificate no. 68/21/18. After some time, he received the FSL report and thereafter filed the challan before the court. The said witness correctly identified the accused and the case property.
9) All the witness were duly cross examined by the Ld. Defence counsel wherein some material facts have come on record which shall be duly dealt with in the reasoning part of the judgment.
STATEMENT OF THE ACCUSED:
10) After recording the testimony of PW-4, the PE was FIR No. 572/2016 , PS Burari Page No. 9 of 16 i closed and the statement of the accused person u/s 313 Cr.P.C. was recorded on 10.03.2025. In the said statement, the accused person denied all the allegations levelled against her and stated that she had been falsely implicated in the present case. The accused person further stated that she did not want to lead any DE and accordingly, the matter came up for final arguments.
FINAL ARGUMENTS:
11) Arguments on behalf of the accused by ld. counsel Sh. R.P. Singh and by Sh. Rohit Lohat, Ld. APP on behalf of the State.
12) It was argued by the Ld. counsel for the accused that the cardinal principle of criminal jurisprudence was that the prosecution was required to prove the guilt of the accused beyond all reasonable doubt which the prosecution had miserably failed to do in the case at hand. It was argued that there were material contradictions in the testimony of all witnesses which is detriment to the case of the prosecution. It was then argued that no public witnesses were examined by the prosecution, the seal was handed over to police officials itself which casts doubt upon the prosecution story. It was also argued that no photographs of the case property were taken on the spot, in the absence of which, it cannot be said that the illicit liquor was recovered from the possession of the accused person.
Accordingly, it was argued that the accused person had FIR No. 572/2016 , PS Burari Page No. 10 of 16 i been falsely implicated in the present case and was entitled to be acquitted of all the charges levelled against her.
13) Per contra, it was argued by the Ld. APP for the state that there were ocular and documentary evidence on record to bring home the guilt of the accused person. It was argued that where the accused is charged of commission of the offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. Accordingly, it was argued that the state had proved its case beyond reasonable doubt that the accused person was found in possession of illicit liquor without permit and she be convicted of the offence u/s 33 Delhi Excise Act.
14) I have heard the arguments from both the sides and have carefully gone through the record.
REASONS FOR JUDGMENT:
15) It is the fundamental principle of criminal jurisprudence that an accused is presumed to be innocent until his/her guilt is proved beyond all reasonable doubt, the general burden of which is always upon the prosecution and it never shifts. It is for the prosecution to travel the entire distance from 'may have' to 'must have' and if the same is not done, the benefit of any and every lacuna has to necessarily go to the accused person/s.
FIR No. 572/2016 , PS Burari Page No. 11 of 16 i
16) In view of this cardinal principal, at the foremost, the court finds it necessary to deal with the argument of the ld. APP with respect to the presumption in favour of the prosecution u/s 52 Delhi Excise Act. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of 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. (2) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence".
17) What transpires from a bare reading of the said provision, especially the words "for the possession of which he is unable to account satisfactorily" used in Section 52(1), is that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused and in favour of the prosecution, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused and in case the same stands established, now if the accused is unable to account for the same, a presumption is raised in favour of the prosecution. Thus, it is only after FIR No. 572/2016 , PS Burari Page No. 12 of 16 i the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, in the case at hand, the court is of the opinion that the prosecution has failed to establish beyond reasonable doubt that the accused person was found in possession of the alleged illicit liquor in which case, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against her in the present case.
18) In the first instance, it has transpired from the testimony of all the police witnesses that while they were on patrolling duty, they got secret information that one lady was selling illicit liquor from her house and if raid be conducted, she could be apprehended. Now, all the witnesses also agreed that no photography or videography was done at the scene and despite presence of public persons, no one was joined in the investigation. When all these circumstances are taken together, there is no material evidence which shows that it was from the possession of the accused person that the illicit liquor was recovered.
19) In the second instance, the prosecution has failed to examine any public witnesses and has only examined the police witnesses, including the IO, to prove that illicit liquor was recovered from the possession of the accused. Admittedly, the alleged spot of recovery is a public place, as has been deposed by all the witnesses and as is also evident from the site map, however, the witnesses have not FIR No. 572/2016 , PS Burari Page No. 13 of 16 i deposed regarding any concrete efforts that might have been taken to join public witnesses. Although it has come in the testimony of PWs that the public persons were asked to join the investigation, however, the said persons refused to join the investigation, citing one or the other difficulties but no notices were served upon any of such persons. Reliance can be placed upon the judgement of Hem Raj v. State of Haryana AIR 2005 SC 2110, in this context.
20) Furthermore, it cannot be ignored that it has come in the testimony of all prosecution witnesses that after sealing the samples of illicit liquor with the seal, PW-3 handed over the seal to PW-2 and that no seal handing over memo was prepared. In such a case, the possibility of tampering with the case property cannot be ruled out as the seal remained all along with the police officials till the time case property was deposited in Malkhana. Hence, benefit of doubt is to be given to the accused. Reliance in this regard is placed on the judgment of the Hon'ble High Court of Delhi in the case of Saifullah Vs. State 1993 (1) RCR (Criminal) 622, wherein it was 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) Thirdly, Chapter 22 Rule 49 of Punjab Police Rules, FIR No. 572/2016 , PS Burari Page No. 14 of 16 i 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. In the present case, no other entry/entries have been proved on the record by the prosecution in support of any investigation that may have been conducted by the police officials. In absence of such proof, the court finds it hard to believe the prosecution version and the testimony of the police officials. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
22) To sum it all, the court is of the opinion that all the lapses in investigation as discussed hereinabove create a doubt on the very recovery of illicit liquor from the possession of accused person. Accordingly, in view of the material lapses in the investigation, i.e. the lack of photographs of the spot and case property, the non-handing over of the seal to independent witnesses, non-preparation of seal handing over memo, the non- proving of DD entries qua the entry and departure of police officials from PS, etc., these discrepancies are detrimental to the case of the prosecution.
23) In the given circumstances, the court is of the FIR No. 572/2016 , PS Burari Page No. 15 of 16 i opinion that the material as available on record is insufficient to record a finding of guilt against the accused person and all the above-mentioned facts and circumstances shroud clouds of suspicion over the prosecution version. Thus, this court deems it fit to give the benefit of doubt in the present to the accused and she is entitled to be exonerated of the charges levelled against her in the present case. Thus, accused Madhu is hereby acquitted of the offence punishable under Section 33 Delhi Excise Act, 2009.
(Announced in open Court
Digitally
on 10th March 2024 ) signed by
PAYAL
PAYAL SINGAL
SINGAL Date:
2025.03.10
(The judgment contains 16 pages 16:30:38
+0530
and all the pages bear my signatures)
(Payal Singal)
JMFC-09/Central District
Delhi/10.03.2025
FIR No. 572/2016 , PS Burari
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