Delhi District Court
State vs Sajana on 18 April, 2026
IN THE COURT OF MS. SHRUTI SARASWAT, JUDICIAL
MAGISTRATE FIRST CLASS-03, NORTH-EAST KARKARDOOMA
COURTS, DELHI
STATE VS. SAJANA
DLNE020012722022
F.I.R. No. : 77/2020
Police Station: Khajuri Khas
U/S 33 Delhi Excise Act
(a) Case ID number/CR No. : 650/2022
(b) Date of commission of the : 04.02.2020
offence
(c) The name of the complainant : Ct. Kalik, PIS No.28160264,
Khajuri Khas, Delhi.
(d) The name of the accused, : Sajana S/o Dassa Ram, R/o
parentage and residence H.No. C-7, Gali No.01,
Khajuri Khas, Delhi.
(e) Charge framed : Under Section 33 Delhi
Excise Act
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Acquittal
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 1 of 17
(h) The date of such order : 18.04.2026
(i) State represented by : Sh. Mohit, Ld. APP for
State.
(j) Accused represented by : Sh. Raj Kumar, Ld. Counsel
for accused.
Challan filed on: 05.03.2022
Final arguments heard on:18.04.2026
Judgment announced on: 18.04.2026
JUDGMENT
CASE OF PROSECUTION
1. The wheels of criminal justice system were set in motion in
the present case upon apprehension of the accused Sajana by Ct. Kalik
on 04.02.2020, he was on patrolling duty near Government School
Khajuri Khas with W/Ct. Ritu. At around 8:10 PM, they saw a woman
who was coming from the side of school towards main pusta road and
she picked plastic katta in her hand. Upon checking of the plastic katta,
found 31 quarter bottles of illicit liquor with the label ” Santra Desi
Sharab” for Sale in “Haryana” without any permit or license of National
Capital Territory of Delhi. It is the case of the prosecution that accused
upon seeing Ct. Kalik who was on patrolling duty on 04.02.2020, the
accused tried to run away and when she was apprehended, she was found
in possession of illicit liquor. It is stated that accused Sajana has
committed an offence punishable u/s 33 Delhi Excise Act.
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COURT PROCEEDINGS
2. After completion of investigation, charge sheet was filed
against the accused under Section 33 Delhi Excise Act on 05.03.2022
cognizance of offence was taken and the accused was consequently
summoned. Copy of charge sheet was supplied to the accused in
compliance of Section 207 Cr.P.C.
CHARGE
3. Thereafter, vide order dated 14.02.2024, charge for committing
offence punishable u/s 33 Delhi Excise Act was framed against the
accused, to which, he pleaded not guilty and claimed trial.
DEPOSITION OF PROSECUTION’S WITNESSES
4. In order to prove its case qua the offence u/s 33 Delhi Excise
Act, the prosecution has examined 5 witnesses in total.
5. PW-1 Ct. Kalik has deposed that on 04.02.2020, he along
with W/CT Ritu were on patrolling duty near Government School
Khajuri Khas. At around 8:10 PM, they saw a woman who was coming
from the side of school towards main Pusta Road and she was having one
plastic katta in her hand, and after seeing them, she started going
backward. On suspicion, he asked W/CT Ritu to stop her and check the
plastic katta. Thereafter, W/CT Ritu stopped that lady and checked the
plastic katta and found 31 quarter bottles of illicit liquor with the lable
Santra Deshi Sharab for Sale in Haryana only. Thereafter, he informed
duty officer about the incident and after some time, IO/HC Sandeep came
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at the spot and they produced the lady and recovered illicit liquor.
Thereafter, IO took one bottle as sample and remaining bottles were kept
and sealed in the plastic katta vide EX.PW1/A and the seal was handed
over to him by IO. IO also filed form M-29 at the spot. Thereafter, IO
recorded his statement and prepared tehrir vide EX.PW1/B and sent him
to PS with rukka for registration of FIR. Thereafter, he got the FIR
registered and returned back to spot and handed over the copy of FIR and
original rukka to IO. Thereafter, IO prepared site plan and also recorded
your disclosure statement.
In his cross-examination, the witness has deposed that he
does not remember DD no. vide which they had left the PS for patrolling.
IO did not ask him to provide her call details. The case property was
seized by IO prior to registration of FIR and seizure memo was also
prepared prior to registration of FIR. The place of incident was public
place. IO requested few public persons to join the investigation but none
of them agreed and left the spot. No notice was served upon anyone. No
public witness was joined as a witness during recovery and preparation of
seizure memo of case property. No seal handing memo was prepared by
IO in his presence. He does not remember who took the case property to
PS from the spot. He denied that nothing was recovered from possession
of accused person and she was falsely implicated. He denied that no
public person was joined the spot in the investigation. No photographs or
vidoe was taken by her of the case property. He was discharged on
03.01.2025.
6. PW-2 W/HC Ritu has deposed that 04.02.2020, she along
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with Ct. Kalik were on patrolling duty near Government School Khajuri
Khas. At around 8:10 PM, they saw a woman who was coming from the
side of school towards main Pusta Road and she was having one plastic
katta in her hand, and after seeing them, she started going backward. On
suspicion, she asked that lady to stop and he checked the plastic katta and
found 31 quarter bottles of illicit liquor with the lable Santra Deshi
Sharab for Sale in Haryana only. Thereafter, they informed duty officer
about the incident and after some time IO/HC Sandeep came at the spot
and they produced the lady and recovered illicit liquor. Thereafter, IO
took one bottle as sample and sealed the same and remaining bottles were
kept and sealed in the plastic katta vide EX.PW1/A. Thereafter, IO
prepared tehrir and sent Ct. Kalik to PS with rukka for registration of FIR
and after that IO prepared site plan and also recorded your disclosure
statement. Thereafter, IO bound down you and they returned back to PS
with case property and deposited the same in the malkhana.
In his cross-examination, the witness deposed that he did not
make any departure DD entry before leaving PS. Sh does no remember
when they finally left the spot. She does not remember the time of seizure
of the case property however same as seized in PS. The place of incident
was public place. IO did not join any public persons. She does not
remember where IO prepared tehrir. He denied that nothing was
recovered from possession of accused peson and she was falsely
implicate. He was discharged on 01.03.2025.
7. PW-3 Ct. Rohtas deposed that on 14.02.2020, he collected
the case property along with form M-29 of this case from the MHC(M)
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on the direction of IO/HC Sandeep and took the same to excise office
ITO vide RC No. 44/21/20 and deposited the same there. After returning
from the excise office ITO, he handed over the copy of RC to MHC(M).
In the cross examination, witness has deposed that he has not
filed an TA/DA regarding deposition of the sample at Excise Office. He
had not taken any photograph of the same for the purpose of whether seal
was intact or not. He does not remember his arrival or departure DD
entry. He was discharged on 10.10.2025.
8. PW-4 HC Sandeep deposed that on 04.02.2020, he was
present in the PS and Duty officer marked the investigation of the present
case to him and he went to the spot i.e. Near Government School, Khajuri
Khas Village where he met Ct. Kalik and W/Ct. Ritu and they handed
over one apprehended lady namely Sajana with illicit liquor to him. He
checked the katta and found 31 quarter bottles of Santra Desi Sharab and
took one bottle as sample and sealed the same vide Ex.PW1/A. After that,
he handed over the seal to Ct. Kalik and filled the Form M-29. He also
recorded statement of Ct. Kalik vide Ex. PW1/B and prepared a tehrir
and sent to Ct. Kalik to PS for registration of FIR. After registration of
FIR, he came back at the spot and handed over copy of FIR and original
rukka to him. Thereafter, he prepared site plan vide Ex. PW4/A.
Thereafter, you were bound down u/s 41A of Cr.P.C. vide Ex. PW4/B. He
also recorded your disclosure statement vide Ex. PW4/C and thereafter,
they came back to PS alongwith you and case property and the case
property was deposited in the malkhana. During the investigation, he also
sent the case property to ITO Excise Office. He also recorded statements
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 6 of 17
of relevant witnesses during investigation and thereafter, he was
transferred from PS and handed over the file to MHC(R).
In his cross-examination, the witness deposed that he
reached at the spot alone at round 8.30 PM. He does not remember which
type of transportation used by him on that day. The spot was street and
5-7 public persons were passing through the street. No notice was served
upon any public person by me as none of them were willing to participate
in the investigation. He does not remember whether he was having
android phone on that day or not. He does not know whether any other
police official was having android phone or not. He did not prepare any
separate seal handing over memo. He had not taken any photograph of
the case property or same at the time of destruction of the same. He
denied that he had not taken any photograph as no such case property
was seized by me. He denied that he did not visit the spot or that nothing
was recovered from the possession of the accused. He denied that case
property was planted upon the accused while sitting in PS to falsely
implicate accused. He also denied that he did not conduct the fair
investigation in this case and he had falsely implicated the accused being
the IO. He was discharged on 10.10.2025.
9. PW-5 ASI Vikram Singh has deposed that on 20.10.2020, the
investigation of this case was marked to him by SHO. PW5 received the
file from MHC(R) and collected Excise result of the case property.
In the cross examination, PW5 has deposed that nothing was
recovered in his presence from the accused. He has not obtained any case
property or the sample of the case property. He was discharged on
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21.11.2025.
10. The remaining witnesses being formal in nature were
admitted by accused in his statement recorded u/s 294 Cr.PC recorded on
14.02.2024
STATEMENT / DEFENCE OF THE ACCUSED
11. Upon completion of prosecution evidence, statement of
accused under Section 313 Cr.PC read with Section 281 Cr.PC was
recorded on 29.01.2026. The accused denied the allegations and pleaded
innocence and opted not to lead defence evidence.
ARGUMENTS
12. It is contended by Ld. Counsel for accused that nothing has
been recovered from possession of the accused and she is innocent and
has been falsely implicated in this case after planting case property. It is
further contended that all prosecution witnesses are police witnesses and
no independent public witness has joined and all writing work was done
in the police station. It is further contended that the prosecution has
failed to prove its case beyond reasonable doubts and hence, the accused
is entitled to be acquitted. On other hand, Ld. APP for State contended
that accused has been found with illicit liquor by the police official and in
course of investigation, the testimony of police officials also supports the
case of prosecution.
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 8 of 17
13. With respect to the charge under Section 33 of the Delhi
Excise Act, the case of the prosecution is that on the fateful day the
accused was found in possession of illicit liquor without any permit or
licence. In order to bring home the charge against the accused, the
prosecution was required to prove beyond reasonable doubt the recovery
of illicit liquor from the possession of the accused.
14. Relying upon Section 52 of the Delhi Excise Act, learned
Assistant Public Prosecutor for the State had 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.
15. I have thoroughly and carefully perused the record. The
respective submissions of the learned Assistant Public Prosecutor for the
State and learned counsel for the accused have been considered.
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.
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 9 of 17
(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”.
16. Short point for determination before the court is as under –
“Whether on 04.02.2020, at about 8:10 PM at near
Government School, Khajuri Khas situated within
the jurisdiction of PS Khajuri Khas, accused was
found in possession of illicit liquor for sale in
Haryana, without any license or permit ?”
ANALYSIS AND FINDINGS
17. In a criminal trial, the onus remains on the prosecution to
prove the guilt of accused beyond all reasonable doubts and benefit of
doubt, if any, must necessarily go in favour of the accused. It is for the
prosecution to travel the entire distance from may have to must have. If
the prosecution appears to be improbable or lacks credibility the benefit
of doubt necessarily has to go to the accused.
18. Evidently, no public witness to the recovery of the liquor has
been either cited in the list of witnesses or examined by the prosecution
despite the recovery being alleged to have been effected from near
Government School, Khajuri Khas, Delhi As per the site plan Ex.PW4/A
which, according to the site plan, is a residential area. The place of
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 10 of 17
recovery and apprehension of the accused is, therefore, clearly located in
an area where public persons would be readily available. From the
chargesheet itself, it is clear that many residents were present at the spot.
19. It is apparent that no notice was issued to the public person
to join the seizure proceedings. The explanation given by PW1/Ct. Kalik,
PW2/W/HC Ritu, PW3/Ct. Rohtas, PW4/HC Sandeep and PW5/ASI
Vikram Singh that public persons had refused to join investigation cannot
be accepted by the court since, the IO was under obligation to issue
notice in writing to the public persons, who refused to join the police
investigation particularly in the background when the accused has
already been apprehended by the police and there was no apprehension
that accused might escape. Moreover, the IO has not even placed on
record the names of the passerby who were asked to join the investigation
and neither have any reasons been mentioned by the IO for refusal by the
people who were approached to join the investigation. In the facts and
circumstances of the case, this court finds that police has not made any
sincere effort to join independent public witnesses during investigation.
In this regard reliance is being placed on the following judgments:-
In a case law reported as “Anoop V/s State”, 1992 (2) C.C.
Cases 314 (HC), Hon’ble High Court of Delhi has observed as
under:
“18. It is repeatedly laid down by this Court that
in such cases it should be shown by the police
that sincere efforts have been made to join
independent witnesses. In the present case, it is
evident that no such sincere efforts have been
made, particularly when we find that shops wereFIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 11 of 17
open and one or two shop-keepers 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“.
In an case law reported as “Roop Chand V/s The State of
Haryana”, 1999 (1) C.L.R 69, the Hon’ble Punjab & Haryana High Court
held as under:-
“3. I have heard the learned counsel for the
parties and gone through the evidence with their
help. The recovery of illicit liquor was effected
from the possession of the petitioner during
noon time and it is in the evidence of the
prosecution witnesses that some witnesses from
the public were available and they were asked
to join the investigation but they refused to do
do so on the ground that their joining will result
into enmity between them and the petitioner”.
“4. It is well settled principle of the law that the
Investigation Agency should join independent
witnesses at the time of recovery of contraband
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 haveFIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 12 of 17
not given the names and addresses of the
persons contacted to join. 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 he witnesses from the public had refused to
to join the investigation, the Investigating
Officer must 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 public is an after thought and
is not worthy of credence. All these facts taken
together make the prosecution case highly
doubtful”.
In case law reported as “Sadhu Singh V/s State of Punjab”,
1997 (3) Crimes 55 the Hon’ble Punjab & Haryana High Court observed
as under:-
“5. In a criminal trial, it is for the prosecution to
establish its case beyond all reasonable doubts.
It is for the prosecution to travel the entire
distance from may have to must have. If the
prosecution appears to be improbable or lacks
credibility the benefit of doubt necessarily has to
go to the accused” “6. In the present case, the
State examined two witnesses namely, Harbans
Singh ASI who appeared as PW1 and Kartar
Singh. PW2. Both the witnesses supported the
prosecution version in terms of the recovery of
opium from the person of the petitioner, but
there was no public witness who had joined. It
is not necessary in such recoveries that publicFIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 13 of 17
witnesses must be joined, but attempt must be
made to join the public witnesses. There can be
cases when public witnesses are reluctant to join
or are not available. All the same, the
prosecution must show a genuine attempt
having been made to join a public witness or
that they were not available. A stereo-type
statement of non-availability will not be
sufficient particularly when at the relevant time,
it was not difficult to procure the service of
public witness. This reflects adversely on the
prosecution version”.
20. Considering the aforesaid observations made by the Higher
Courts, the omissions/ failure on the part of investigating agency to join
independent public witnesses create reasonable doubt in the prosecution
story. Making bald averments that public persons were asked to join the
investigation but none agreed without giving any written notice to them
does not inspire the confidence of the Court.
21. It is a well settled proposition that non-joining of public
witness shrouds doubt over the fairness of the investigation by police.
Section 100(4) of the CrPC. also casts a statutory duty on an official
conducting search to join two respectable persons of the society. Same
has not been done in the present case. This casts a doubt on the fairness
of the investigation. Reliance is placed on paragraph 6 of the judgment in
Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein
the Hon’ble High Court of Delhi had observed as under:
” … According to Jagbir Singh, he did not join any public
witness in the case while according to Kalam Singh, no
public person was present there. It hardly stands to reason
that at a place like a bus stop near Subhas Bazar, thereFIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 14 of 17
would be no person present at a crucial time like 07.30
p.m. when there is a lot of rush of commuters for boarding
the buses to their respective destinations. Admittedly, there
is no impediment in believing the version of the Police
officials but for that the prosecution has to lay a good
foundation. At least one of them should deposed that they
tried to contact the public witnesses or that they refused to
join the investigation. Here is a case where no effort was
made to join any public witness even though number of
them were present. No plausible explanation from the side
of the prosecution is forthcoming for not joining the
independent witnesses in a case of serious nature like the
present one. It may be that there is an apathy on the part of
the general public to associate themselves with the Police
raids or the recoveries but that apart, at least the I.O.
should have made an earnest effort to join the independent
witnesses. No attempt in this direction appears to have
been made and this, by itself, is a circumstance throwing
doubt on the arrest or the recovery of the knife from the
person of the accused.”
22. Since public persons were not joined in the investigation, the
departure entry of the Ct. Kalik who was allegedly on patrolling duty at
the relevant time and had apprehended the accused with case property
becomes a vital piece of evidence. In the case in hand the departure entry
remains unproved by prosecution. Proof of the said entry is indispensable
as the present case rests solely on the alleged recovery made by the
aforesaid police official. Therefore, the failure to prove the
aforementioned entries casts a doubt on the story of the prosecution. In
absence of the departure entry of PW1/complainant, his presence at the
spot cannot be believed.
23. Further, as per evidence on record, the seal after use was not
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 15 of 17
given to any independent public person by the IO/PW4 and hence
chances of fabrication of case property cannot be ruled out. Moreover, no
seal handing over memo is also on record. Hence, considering the legal
position, the benefit of doubt should be given to the accused, as
tampering with case property in such a scenario cannot be ruled out. The
reliance is placed on the judgment of Ramji Singh Vs. State of Haryana
2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
“7. The very purpose of giving seal to an independent person is to
avoid tampering of the case property. It is well settled that till the
case property is not dispatched to the forensic science laboratory,
the seal should not be available to the prosecuting agency and in
the absence of such a safeguard the possibility of seal, contraband
and the samples being tampered with cannot be ruled out.”
Similarly, Hon’ble Delhi High Court in Safiullah v. State, 1993 (1)
RCR (Criminal) 622, held that –
“10. The seals after use were kept by the police officials
themselves. Therefore the possibility of tampering with the
contents of the sealed parcel cannot be ruled out. It was very
essential for the prosecution to have established from stage to stage
the fact that the sample was not tampered with. Once a doubt is
created in the preservation of the sample the benefit of the same
should go to the accused.”
24. As per Section 52(1), the words “for the possession of which
he is unable to account satisfactorily” clearly reveal that as a pre-requisite
for the presumption under the aforesaid provision being raised against the
FIR No. 77/2020 State Vs. Sajana PS: Khajuri Khas Page no. 16 of 17
accused, it is imperative for the prosecution to successfully establish the
recovery of the said alleged articles 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. However, for the reasons mentioned hereinafter 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 under Section 52 of the Delhi Excise Act can
be raised against the accused in the present case.
25. The standard of proof to be adopted in criminal cases is not
merely of preponderance of probabilities but proof beyond reasonable
doubt on the basis of cogent, convincing and reliable evidence. It is also
well settled that in case of doubt, the benefit must necessarily be allowed
to the accused. Thus, in view of the aforesaid discussion, this Court is of
the considered opinion that the benefit of doubt ought to be granted to the
accused, who is entitled to be exonerated of the charge u/s 33 Delhi
Excise Act against him. The accused Sajana W/o Sh. Dassa Ram is
hereby acquitted of the offence punishable under Section 33 of the Delhi
Excise Act, 2009. Case property be confiscated to State as per rules.
Digitally
signed by
26. Ordered accordingly. SHRUTI
SHRUTI SARASWAT
SARASWAT Date:
Announced in the open court 2026.04.18
on 18.04.2026 16:29:40
+0530
(Shruti Saraswat)
Judicial Magistrate First Class-03,
North-East, Karkardooma Courts, Delhi
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