Delhi District Court
State vs Sushma on 7 April, 2026
IN THE COURT OF REETIKA JAIN, JMFC-05 (NORTH-WEST)
ROHINI COURTS: DELHI
State vs. Sushma
FIR NO. : 51/2021
U/S : 33 of Delhi Excise Act
PS : Mangolpuri
JUDGMENT
a) Sl. No. of the case : 7019/2021
b) Date of institution of the case : 04.09.2021
c) Date of commission of offence : 20.01.2021
d) Name of the complainant : Ct. Kuldeep
e) Name & address of the accused : Sushma W/o Sh. Gautam
R/o H. No. G-491, Mangolpuri,
Delhi.
f) Offence charged with : S 33, Delhi Excise Act
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 07.04.2026
i) Final order : Acquitted
j) Date of Judgment : 07.04.2026
REETIKA
JAIN
FIR No. 51/2021, PS Mangolpuri State Vs Sushma Page 1 of 15 Digitally signed by
REETIKA JAIN
Date: 2026.04.07
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BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Sushma has been sent to face trial with the
allegations that on 20.01.2021 at about 06.00 P.M at Shiv Mandir
Road, G-Block, Mangolpuri, Delhi within the jurisdiction of PS
Mangolpuri, accused was found in possession of 98 quarter bottles
each of illicit liquor of Asali Santra Masaledar Desi for sale in Haryana
only, without any licence, authority or permit. Investigation was
carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was
filed on behalf of the IO and the accused was consequently summoned.
A charge u/s 33 Delhi Excise Act was framed against the accused to
which she pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined
three witnesses. PW-1 Ct. Alka who had accompanied IO HC
Ravinder on receipt on DD no. 72A. Also she witnesses the
proceedings of investigation i.e. recovery vide Ex.PW-1/A, preparing
of form M-29, service of notice upon accused and recording of
disclosure statement. PW-2 HC Kuldeep caught accused red handed
and his statement was recorded vide Ex.PW-2/A. PW-3 ASI Ravinder
is the IO who deposed that on receipt of DD no. 72A, illicit liquor was
seized vide seizure memo Ex. PW-1/A, form M-29 was filled vide
Ex.PW-3/A, tehrir was prepared vide Ex.PW3/B, accused was served
notice U/s 41A Cr.P.C in Ex.PW3/B.
4. Apart from these documents, the accused admitted the genuineness REETIKA
JAIN
of following document u/s 294 Cr.PC, without admitting the contents
Digitally
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REETIKA JAIN
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of the same. These documents were exhibited as under –
(1) FIR no. 0051/2021 in Ex. P-1.
(2) Endorsement on original rukka vide DD no. 93 dated 20.01.2021 in
in Ex.P-2.
(3) Certificate U/s 65B IEA in Ex. P-3.
(4) GD No. 0072A dated 20.01.2021 in Ex.P-4.
(5) Report of chemical examiner in Ex. P-5.
(6) Register no. 19 and 21 in Ex.A-1.
5. Prosecution evidence was thereafter closed. Statement of accused
was recorded u/s 313 Cr.PC, wherein all the incriminating evidence
was put to the accused, to which she stated that she has been falsely
implicated in this case. Further, the accused did not wish to lead
defence evidence. Final Arguments heard. Case file perused.
6. Short point for determination before the court is as under –
” Whether on 20.1.2021 at about 06.00 p.m within the
jurisdiction of PS Mangolpuri, accused was found in possession of
one katta containing 98 quarter bottles each of illicit liquor as per
seizure memo without any licence or permit?”
7. It is argued by Ld. APP for the state that from the ocular and
documentary evidence on record, prosecution has proved beyond
reasonable doubt that accused was found in possession of illicit alcohol
without permit and submitted that accused be convicted of the offence
charged.
Per contra, it is argued by the Ld. Counsel for the accused
that accused is completely innocent and recovery of case property has
been falsely implanted upon him. It is further submitted by Ld. Counsel REETIKA
JAIN
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that non joinder of public witness despite availability cast shadow of
doubt on prosecution story and IO had not taken any steps against so
called independent witnesses, when they allegedly refused to join
investigation. It is further argued by Ld. Counsel for the accused that
tampering with the contents of the sealed parcel cannot be ruled out as
seal was not handed to the independent witness and at the time of
production of case property in the court, it was not bearing case
particulars.
APPRECIATION OF EVIDENCE
8. The primary issue to be decided in the present case is whether the
prosecution has been able to prove its case against the accused beyond
all reasonable doubt. On a perusal of the oral and documentary
evidence/arguments led by the prosecution, the following observation
emerge:
The learned Assistant Public Prosecutor for the state, relying upon
Section 52 of the Delhi Excise Act, 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. The said argument does not find favour with this Court.
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.
REETIKA
JAIN
Digitally signed
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(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”.
The words “for the possession of which he is unable to account
satisfactorily” used in Section 52 (1) of the Delhi Excise Act clearly
reveal 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
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.
9. In present case, prosecution was duty bound to prove the
possession of the illicit liquor with accused. Same is sought to be
proved by the recovery memo and testimony of the witnesses. But the
manner of conducting inquiry, seizure and search etc. on the spot at the
time of arrest of the accused and alleged recovery of liquor in this case,
makes the prosecution version highly doubtful. The same is discussed
as follows:
Non joinder of public persons:
REETIKA
9.1 Incident is stated to have happened at about 06.00 P.M and it is JAIN
Digitally
signed by
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Date:
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evident from the testimony of PW-2, and PW-3 that accused was
apprehended along-with the alleged illicit liquor at public place
carrying katta containing bottles but still no public independent person
was cited as a witness in this case. They clearly stated that people were
present who were not even served notice for joining the investigation.
What makes the version of prosecution more dubious is that the secret
information was never reduced in writing. The recovery is alleged to
have been done near a public spot as envisaged also from the site map,
public persons were readily available at the time when the accused was
apprehended but they have not been named even. Therefore it is clear
that sincere efforts were not made to join independent witnesses despite
their availability which causes a serious dent in the story of the
prosecution and all these facts makes the alleged recovery very
doubtful. The failure to make conscious and serious efforts to give
adequate notice to public witnesses is amplified in view of the statuary
duty which is imposed u/s 100(4) Cr.P.C. to call upon two respectable
persons of the locality to join the search. However, no such notice was
served, thereby raising a doubt on the case of the prosecution. Reliance
in this regard is placed on paragraph 6 of the judgment in Pawan
Kumar v. 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, there 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 REETIKA
JAINFIR No. 51/2021, PS Mangolpuri State Vs Sushma Page 6 of 15 Digitally signed
by REETIKA
JAIN
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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.”
Regarding the importance of joining independent witness during
investigation in a case like the present one, reliance may be placed on
Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein,
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 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 REETIKA
because they could not have escaped the rigour of law while JAIN
Digitally signed
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declining to perform their legal duty to assist the police in
investigation as a citizen, which is an offence under the IPC“.
Similarly, in Nanak Chand Vs. State of Delhi reported as
DHC 1992 CRI LJ 55 it is observed as under:-
“that the recovery is proved by three police officials who have
differed on who snatched the Kirpan from the petitioner and at
what time. The recovery was from a street with houses on both
sides and shops nearby. And, yet no witness from the public has
been produced. Not that in every case the police officials are to
be treated as unworthy of reliance but their failure to join
witnesses from the public especially when they are available at
their elbow, may, as in the present case, cast doubt. They have
again churned out a stereotyped version. Its rejection needs no
Napoleon on the Bridge at Arcola”.
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872,
the Hon’ble Supreme Court held as under:
“It therefore emerges that non-compliance of these provisions i.e.
Sections 100 and 165 Cr.P.C. would amount to an irregularity and
the effect of the same on the main case depends upon the facts
and circumstances of each case. Of course, in such a situation,
the court has to consider whether any prejudice has been caused
to the accused and also examine the evidence in respect of search
in the light of the fact that these provisions have not been
complied with and further consider whether the weight of
evidence is in any manner affected because of the non-
REETIKA
compliance. It is well-settled that the testimony of a witness is not JAINFIR No. 51/2021, PS Mangolpuri State Vs Sushma Page 8 of 15 Digitally signed
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to be doubted or discarded merely on the ground that he happens
to be an official but as a rule of caution and depending upon the
circumstances of the case, the courts look for independent
corroboration. This again depends on question whether the
official has deliberately failed to comply with these provisions or
failure was due to lack of time and opportunity to associate some
independent witnesses with the search and strictly comply with
these provisions.” [Emphasis supplied]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 and substantiates the defence version that there is
false implication of the accused in the present case and that the
recovery has been falsely planted upon the accused specifically when
no photography of accused carrying one katta have been done. Further,
considering facts and circumstances of the present case in the light of
ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no
lack of time and opportunity to associate some independent witnesses
with the search and strictly comply with the provisions of Code of
Criminal Procedure. Hence, the above-mentioned facts create serious
doubt on the case of the prosecution.
Absence of arrival and departure entries :
9.2 Moreover, the arrival and departure entry in the present case has
not been proved in the present case which is a statutory duty on the police
officials. It would be prudent to reproduce Chapter 22 Rule 49 of the
Punjab Police Rules, 1934, which reads as under:
“22.49 Matters to be entered in Register No. II REETIKA
JAIN
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by REETIKA JAIN
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– The following matters shall, amongst others, be entered:
(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.”
In the present case, the non-proof of departure and arrival entry
assumes more significance in view of the fact that no public person was
portrayed as a witness on behalf of the prosecution. At this juncture, it
would be relevant to refer to a case law reported as “Rattan Lal Vs.
State” 1987 (2) Crimes 29, wherein the Delhi High Court has observed
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 & thus the matter has to be viewed by the court with
suspicion, if the necessary provisions of law are not strictly complied
with and then it can at least be said that it was so done with an oblique
motive. This failure of the prosecution to bring on record & prove the
relevant DD entry as discussed above creates a reasonable doubt in the
prosecution version and attributes oblique motive on to the actions of the
members of the raiding party.
Seal handing over doubtful:
9.3 Further, as per evidence on record, the seal after use was not given
to any independent public person as per testimony of PW-2 who stated
that seal bearing “RY” was given to him only. Even, no seal handing
over memo is on record. Hence, considering the legal position, the benefit
of doubt should be given to the accused, as tampering with case property
REETIKA
JAIN
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Digitally signed
by REETIKA JAIN
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in such a scenario cannot be ruled out specifically when the samples
produced in the court were bereft of details of case in form of
photographs. It is the duty of officer in charge of PS to ensure that case
property is preserved and maintained till the time of disposal of matter by
means of final orders. (Rule 27.12 Punjab Police Rules). Thus, due to
this lacuna, the standard cannot be said to be met beyond reasonable
doubt.
At the end, submitted that the prosecution has miserably failed to
prove its case beyond reasonable doubt and therefore, the accused is
liable to be acquitted of the alleged offence as the factum of recovery of
alleged liquor from accused becomes doubtful as chain of custody is
broken.
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 REETIKA
essential for the prosecution to have established from stage to JAIN
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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.”
It is also relevant to note that when the case property was produced
before court, it was observed that seal on it was missing. In a case of
Excise Act, the identity of the case property forms the bedrock of the
indictment. Once the same is shrouded in serious suspicion, the case of
prosecution cannot be built upon the testimony of formal official
witnesses in the absence of any independent public witnesses.
Ante timed seizure memo :
9.4 Interestingly, the seizure memo and site plan contains the FIR
number which makes it apparent that these were prepared prior to
registration of FIR. The same is fatal for the case of the prosecution and
reliance here is placed on the decision of the Hon’ble High Court of Delhi
in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127,
wherein it was observed in paragraph 5 as under:
“… Learned counsel for the State concedes that immediately after the
arrest of the accused, his personal search was effected 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. REETIKA
JAIN
should not find mention in the recovery memo or the sketch plan
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which had 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.”
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
site plan and 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. 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.
Non offering of police officials for their own search:
9.5 Moreover, anywhere in the rukka, it is not mentioned that after the
apprehension of the accused, but before taking the formal/casual search
of the accused, the police officials including the members of the raiding
party, any of them had offered their own search to the accused , meaning
thereby, that it has not been proved on record that the said police officials,
who had effected the apprehension of the accused had offered themselves
for search by the accused or to any other member of public before
conducting the search of the accused so as to obviate the possibility of the
planting of the case property on to the accused. At this juncture, it would
be appropriate to refer to the judgment of Orissa High Court reported as
“Rabindernath Prusty Vs. State of Orissa” wherein it was held as
under:
“10. The next part of the prosecution case is relating to the search
and recovery of Rs. 500/ from the accused. One of the formalities
REETIKA
that has to be observed in searching a person in that the searching JAINDigitally signed
by REETIKA
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Officer and others assisting him should give their personal search to
the accused before searching the person of the accused. (See AIR
1969 SC 53 : (1969 Cri. L.J. 279), State of Bihar Vs. Kapil Singh).
This rule is meant to avoid the possibility of implanting the object
which was brought out by the search. There is no evidence on record
whatsoever that the raiding party gave their personal search to the
accused before the latter’s person was searched. Besides the above, it
is in the evidence of PWs 2 & 5 that the accused wanted to know the
reason for which his person was to be searched and the reason for
such search was not intimated to the accused. No independent
witness had witnessed the search. In the above premises, my
conclusion is that the search was illegal and consequently the
conviction based thereon is also vitiated”.
10. 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. Reference may
also be made to the judgment titled as Nallapati Sivaiah v. Sub
Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
Therefore, in view of the discussions made herein above and the facts
and circumstances of the present case, in my considered opinion, the
prosecution has failed to prove the guilt of the accused beyond
reasonable doubt. Hence, accused Sushma stands acquitted of the
offence under section 33 of Delhi Excise Act, she has been charged
with. Case property be destroyed after the expiry of the period of
REETIKA
appeal. Ordered accordingly. Bail bonds filed by the accused earlier JAIN
Digitally signed
by REETIKA
JAIN
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stands extended towards compliance of section 437A Cr.PC and they
shall remain in force for the period of six months from today.
File be consigned to record room.
It is certified that this judgment contains 15 pages and every page
bears the signature of undersigned.
Announced in open court
On 07.04.2026(Reetika Jain)
JMFC -05, North West
Rohini Courts, Delhi/07.04.2026REETIKA
JAIN
Digitally signed
by REETIKA JAIN
Date: 2026.04.07
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