Delhi District Court
State vs Keshar on 25 November, 2025
CNR No. DLWT02-007932-2023
IN THE COURT OF SH. ANSHUL SINGHAL
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
TIS HAZARI COURTS, DELHI
CNR No.: DLWT02-007932-2023
Cr. Case: 4402/2023
FIR No.: 501/2022
PS: Moti Nagar
U/s.: 33/38 Delhi Excise Act
State
versus
Keshar Devi
W/o Sh. Deepak
R/o H.No. WZ-153, A-194, T-Huts, Block A, Rama Road,
Zakhira, Moti Nagar, Delhi
JUDGMENT
Date of Commission of Offence : 08.09.2022 Offence Complained of u/s. : 33/38 Excise Act Plea of Accused : Not Guilty Date when judgment was reserved : 18.10.2025 Date of pronouncement of judgment : 26.11.2025 Final Order : Acquitted Argued By: Sh. Amit Yadav, Ld. APP for the State.
Sh. Sandeep Nehra, Ld. Counsel for the Accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. Vide this judgment, I shall dispose of the present case in FIR No. 501/2022 PS Moti Nagar u/s. 33/38 Excise Act.
FIR No. 501/2022 State vs. Keshar Devi Page No. 1 of 16 CNR No. DLWT02-007932-2023
2. The brief facts of the case as per the prosecution are that on 08.09.2022 at about 09:15 PM near Bislery Factory, Rama Road, Delhi within the jurisdiction of PS Moti Nagar, accused was found in possession of one plastic sack containing 100 quarter bottles of 'Taza Santra Masaledar Sharab' for sale in Haryana only, in contravention of the provision of Delhi Excise Act and rules framed therein.
COMMENCEMENT OF TRIAL
3. Chargesheet was filed against the accused on 08.05.2023 on which cognizance was taken by this court on the same day. Accused entered appearance on 08.05.2023 and copy of the chargesheet was supplied to her on the same day.
4. After due compliance of Section 207 CrPC, arguments on charge were heard, and charge for offence u/s. 33/38 Delhi Excise Act was framed against the accused on 08.05.2023 by this court, to which the accused pleaded not guilty and claimed trial. Statement of accused u/s. 294 CrPC was recorded on 08.05.2023.
PROSECUTION EVIDENCE
5. In order to prove the charge against the accused, the prosecution examined four witnesses i.e. PW-1, Ct. Lal Chand, PW-2 HC Shyokishan, PW-3 W/Ct. Madhubala and PW-4 HC Yogesh Kumar. Further, these witnesses placed the following evidence on record:
S. No. Document Exhibit No.
1. Statement of PW-1 Ex.PW1/A
2. Seizure memo Ex.PW1/B
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CNR No. DLWT02-007932-2023
3. Site plan Ex.PW1/C
4. Interrogation report of accused Ex.PW1/D
5. Rukka/ tehrir Ex.PW4/A
6. Notice u/s 41A CrPC Ex.PW4/B
7. Case property Ex.P1
6. Further, Ld. APP for the state has placed reliance on the following documents which were admitted by the accused (without admitting the contents thereof, although not disputing the genuineness) in his statement u/s. 294 CrPC:
S. No. Document Exhibit No.
1. Copy of FIR No.501/2022 dated Ex.A1
08.09.2022
2. Certificate u/s 65B of IEA Ex.A2
3. DD No.124A dated 08.09.2022 Ex.A3
4. RC No.130/21/222 Ex.A4
5. Excise result dated 28.12.2022 Ex.A5
7. PW-1 deposed that on the date of the incident he was on patrolling duty and he has deposed against the accused regarding recovery of illicit liquor, recording of statement, seizure memo of illicit liquor, preparation of site plan, interrogation report of the accused, notice u/s 41A CrPC. He has further correctly identified the accused and the case property. Witness was duly cross- examined by Ld. Defence Counsel for accused and discharged.
8. PW-2 deposed that on the date of the incident he was on patrolling duty and he has deposed against the accused regarding recovery of illicit liquor, recording of statement, seizure memo of illicit liquor, preparation of site plan, interrogation report of the FIR No. 501/2022 State vs. Keshar Devi Page No. 3 of 16 CNR No. DLWT02-007932-2023 accused, notice u/s 41A CrPC. He has further correctly identified the accused and the case property. Witness was duly cross- examined by Ld. Defence Counsel for accused and discharged.
9. PW-3 deposed that he was alongwith the IO and he has deposed against the accused that accused alongwith illicit were handed over to IO by PW-1 and PW-2. He has further deposed regarding recording of statement of PW-1, seizure memo of illicit liquor, preparation of site plan, interrogation report of accused, and serving of notice u/s 41A CrPC to the accused. He has further correctly identified the accused and the case property. Witness was duly cross-examined by Ld. Defence Counsel for accused and discharged.
10. PW-4 deposed that he was the IO and he has deposed against the accused that accused alongwith seized liquor were handed over to him by PW-1 and PW-2. He has further deposed regarding preparation of rukka, recording of statement of PW-1, seizure of illicit liquor, preparation of site plan, interrogation report of accused, serving of notice u/s 41A CrPC to the accused. He has further correctly identified the accused and the case property. Witness was duly cross-examined by Ld. Defence Counsel for accused and discharged.
11. Since no other witnesses as per the prosecution list of witnesses were remaining to be examined, hence, on submissions of Ld. APP for the State, PE was closed vide order dated 17.07.2025.
FIR No. 501/2022 State vs. Keshar Devi Page No. 4 of 16 CNR No. DLWT02-007932-2023 STATEMENT OF ACCUSED u/s. 313 CrPC
12. Statement of the accused u/s. 313 CrPC was recorded on 24.09.2025 wherein all the incriminating circumstances were put to her. Accused stated that she is an innocent and has been falsely implicated in the present matter and nothing incriminating was recovered from her possession. Accused also stated that she does not wish to lead defence evidence. Thereafter, final arguments were heard on 18.10.2025.
FINAL ARGUMENTS
13. Ld. APP has submitted that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt as testimony of any of the witnesses has not been impeached by the accused.
14. He has further submitted that all the ingredients of offence are made out in the present case. He has further argued that the prosecution witnesses have categorically deposed about recovery from the accused and there is no ground to disbelieve their testimony merely because they are police officials.
15. He has argued the offence under consideration is proved beyond reasonable doubt on the basis of oral as well as documentary evidence placed on record. As such, it is prayed that accused be punished for the said offence.
16. Per contra, Ld. counsel for the accused has argued that the prosecution has failed to establish its case beyond reasonable doubt. Ld. counsel submits that the accused has been falsely implicated by the police and nothing was recovered from the FIR No. 501/2022 State vs. Keshar Devi Page No. 5 of 16 CNR No. DLWT02-007932-2023 possession of the accused.
17. It is further submitted that there is no public witness in present case who has witnessed the alleged recovery. It is further submitted that no personal search was given by police officials to accused before conduct of search of the accused. Furthermore, it has been argued that accused has never been previously convicted of any offence.
18. It is further submitted that there are contradictions in examination-in-chief of witnesses and their statements recorded u/s. 161 CrPC. Ld. Counsel has further submitted that there are material deficiencies in the case of the prosecution. As such, it is prayed that accused be acquitted of the said offence.
APPRECIATION OF EVIDENCE
19. I have heard the submissions on behalf of the state and Ld. Defence Counsel and have carefully gone through all the records at hand and testimony of the witnesses.
20. 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 33/38 of the Delhi Excise Act, the prosecution must fulfil all the essential ingredients of the offence.
21. In criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. On a bare perusal of the above offence, it can be culled out that the prosecution has to prove that the accused was found in possession of illicit liquor, and the said possession of the accused was without any permit, licence or FIR No. 501/2022 State vs. Keshar Devi Page No. 6 of 16 CNR No. DLWT02-007932-2023 pass. Thus, it is essential to prove the recovery from the accused.
22. Ld. APP has relied upon Section 52 of the Delhi Excise Act. As per Ld. APP for the State, as soon as the accused is charged of commission of the offence punishable under Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised u/s. 52 of the Delhi Excise Act. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"52. 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".
23. The words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act stipulates that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged illicit liquor from the possession of the accused. It is only after 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.
FIR No. 501/2022 State vs. Keshar Devi Page No. 7 of 16 CNR No. DLWT02-007932-2023
24. However, for the reasons mentioned here-in-after the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for u/s. 52 of the Delhi Excise Act can be raised against the accused in the present case.
25. In the present case, the prosecution story rests entirely on the alleged recovery of case property i.e., illicit liquor, from the possession of accused by a police officials namely, Ct. Lal Chand and HC Shyokishan who have been examined as PW-1 and PW-2 respectively, who were on patrolling duty at the relevant time and place of incident. As such, their testimony is of prime importance in the present matter.
26. At the outset, it is observed that no evidence of any arrival/departure entries of PW-1 and PW-2 has been led by the state. Although, both the witnesses have stated in their cross- examination that they had made a departure entry before leaving the PS, however, no such entry has been placed on record by the prosecution and the witnesses could not even tell the details of the DD entry. The departure/arrival entry in the Daily Diary would have been a substantial piece of evidence to corroborate the version of police officials.
26.1. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of the Punjab Police Rules, 1934 reads as under:
"22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered:
FIR No. 501/2022 State vs. Keshar Devi Page No. 8 of 16 CNR No. DLWT02-007932-2023 ***
(c) 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. 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.
Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
26.2. The prosecution has not tendered any such DD entry into evidence to corroborate the stand of the wintesses. It is also to be noted that no application u/s 311 CrPC (now Section 348 BNSS) was moved on behalf of the prosecution to place on record such DD entries. In this regard, reliance is placed by this court on the judgment of Hon'ble High Court of Delhi in Rattan Lal vs. State, 1987 (2) Crimes 29, wherein it has been held that;
"...if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution..."
26.3. Therefore, non-production of DD entries to prove that the witnesses were on patrolling duty on the date of incident, throws a doubt on the presence of the police officials at the place of incident.
27. In the present case, the prosecution has not led evidence of any public person. All the witnesses are police officials. It is not the case of the prosecution that no public person was present at FIR No. 501/2022 State vs. Keshar Devi Page No. 9 of 16 CNR No. DLWT02-007932-2023 or near the spot of arrest and recovery. In fact, in the testimonies of all the prosecution witnesses, it has been stated that the IO did ask certain public persons to join the proceedings, however, they refused and left without disclosing their names and addresses. It is to be noted here that the place of recovery is a public place and same is also evident from site plan which is placed on record as Ex.PW1/C. It is also to be noted there is nothing on record to show that IO had served any notice upon the persons who refused to join the investigation.
27.1. Thus, the prosecution has failed to prove that any serious effort was made by the police officials to join public witnesses in the proceedings. It is a well settled proposition that non joining of public witness casts doubt over the fairness of the investigation by police.
27.2. Section 100(4) CrPC also casts a statutory duty on the police officer conducting search to join two or more independent and respectable inhabitants of the locality. Same has not been done in the present case.
27.3. Further, no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. This casts a doubt on the investigation conducted by the IO.
27.4. In this regard, reliance is placed by this court on the judgment of Hon'ble High Court of Delhi in Pawan Kumar vs. The Delhi Administration, 1989 Cri.L.J. 127. Further, reliance is FIR No. 501/2022 State vs. Keshar Devi Page No. 10 of 16 CNR No. DLWT02-007932-2023 placed by this court on the judgment of Hon'ble High Court of Delhi in Anoop Joshi vs. State, 1992 (2) C.C. Cases 314 (HC), wherein it was held 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".
27.5. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai & Anr. vs. State of Gujarat, AIR 1988 SC 696.
27.6. On the basis of above-mentioned judgments, it is apparent that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses.
27.7. However, it would be prudent to examine or scrutinize their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of such testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
27.8. As discussed in the preceding paragraphs of this judgment, IO did not even make any sincere endeavour to join FIR No. 501/2022 State vs. Keshar Devi Page No. 11 of 16 CNR No. DLWT02-007932-2023 the public witnesses.
27.9. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinabove and hereinafter, which raise suspicion over the prosecution version.
28. Further, as per the testimonies of the prosecution witnesses, the case property was sealed by PW-4 HC Yogesh Kumar with the seal of 'YKR'. However, no seal handing over memo regarding the same was prepared. Further, the seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. No evidence has been led to show as to when the case property was deposited in malkhana. Thus, the possibility that the case property may have been tampered with cannot be ruled out. As such, the prosecution has not been able to prove that there was no scope of tampering. Therefore, the evidence of the witnesses on this point does not inspire confidence.
29. Moving ahead, all the prosecution witnesses have deposed that seizure memo Ex.PW1/B was prepared before rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo. Accordingly, it follows that the number of the FIR would have come to the knowledge of the witness only after a copy of the FIR was brought to the spot by PW-1.
29.1. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which came into existence before FIR No. 501/2022 State vs. Keshar Devi Page No. 12 of 16 CNR No. DLWT02-007932-2023 registration of the FIR. However, interestingly, the seizure memo bears the FIR number and case details. The same indicates that FIR number was mentioned on the said document while preparing the same.
29.2. In this regard, reliance is placed by this court on the decision of the Hon'ble High Court of in Pawan Kumar (supra), wherein it was observed as under:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was affected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
29.3. Furthermore, reliance is placed by this court on the decision of the Hon'ble High Court of in Mohd. Hashim vs. State, 1999 VI AD (Delhi) 569, wherein it was observed as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub Inspector Narender Kumar Tyagi FIR No. 501/2022 State vs. Keshar Devi Page No. 13 of 16 CNR No. DLWT02-007932-2023 (PW7), the notice under Section 50 of the Act (Ex.
PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex.PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 contraband in the manner alleged by the prosecution."
29.4. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo. The same leads to inference that either the said documents were prepared later or that the FIR had been registered earlier in point of time. It is also to be noted that the seizure memo does not even contain any details about the DD No.112A dated 08.09.2022 and only contains details of the FIR. In both the aforesaid cases, a dent is created and unexplained holes are left in the prosecution story, the benefit of which must accrue to the accused.
30. It is also to be noted that despite their being four police officials for apprehension of the accused, none of the police officials has clicked any photographs or made video regarding the alleged recovery from the accused and no explanation was offered as to why same was not done.
FIR No. 501/2022 State vs. Keshar Devi Page No. 14 of 16 CNR No. DLWT02-007932-2023
31. The facts that no independent witness was cited or examined, DD entry regarding departure or arrival of the police officials have not been proved, possibility of misuse of seal, non- explanation of the appearance of FIR number and other case particulars on the seizure memo and inherent contradictions in the testimony of prosecution witnesses, when kept in juxtaposition to each other, cast a cloud of suspicion over the prosecution version.
32. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out. Considering the discussion on the above issues, the inevitable conclusion is that the prosecution has failed to prove that illicit liquor was recovered from the possession of the accused.
FINDINGS OF THE COURT
33. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence of Section 33/38 of the Delhi Excise Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution.
34. The recovery of case property from the possession of the accused, which was the essential ingredient of the offence, is highly doubtful. The fact that independent witnesses were not joined, despite abundant availability, casts serious doubt on the version of the prosecution. Further, the accused has been able to raise doubts with respect to the possibility of tampering with the case property. The other material on record does not inspire FIR No. 501/2022 State vs. Keshar Devi Page No. 15 of 16 CNR No. DLWT02-007932-2023 confidence and a conviction cannot be based on the said material.
35. Resultantly, the prosecution has failed to prove the offence beyond reasonable doubt and the accused is entitled to the benefit of doubt. As such, accused, namely, Keshar Devi W/o Sh. Deepak is acquitted of commission of offence under Section 33/38 of Delhi Excise Act.
Digitally signed by
ANSHUL ANSHUL SINGHAL
SINGHAL Date: 2025.11.26
17:00:27 +0530
Announced in Open Court (Anshul Singhal)
on 26.11.2025 JMFC-04, West District,
Tis Hazari Courts, Delhi.
Note: This judgment contains 16 pages and each page has been signed by the undersigned. Digitally signed by ANSHUL ANSHUL SINGHAL SINGHAL Date: 2025.11.26 17:00:33 +0530 (Anshul Singhal) JMFC-04, West District, Tis Hazari Courts, Delhi.
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