Delhi District Court
State vs Deepak Chaudhary on 16 April, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
DEEPAK CHAUDHARY
CASE No. 7745/2019
FIR No. 140/2019
P.S. - Khyala
U/S- 33/38 Delhi Excise Act,
2009
1.Date of commission of offence : 27.04.2019
2. Name of the Complainant : Ct. Krishan
3. Name of the accused, and his parentage and residence : Deepak Chaudhary S/o Sh.
Bhupender Chaudhary, R/o H.No.B-3/673, Raghubir Nagar, Khyala, Delhi
4. Date when judgment : 12.03.2025 was reserved
5. Date when Judgment : 16.04.2025 was pronounced
6. Offence Complained of : Section 33/38 of Delhi or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16
8. Final Judgment : Acquitted 16:38:07 +0530 FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 27.04.2019, at about 08:50 PM near Ganda Nala Road 12 ½ Gaj, Raghubir Nagar, Delhi within the jurisdiction of Police Station - Khyala, accused Deepak Chaudhary was found in possession of eight gatta petty containing 384 quarter bottles of 'Impact Grain Whisky for sale in Haryana only' without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 28.09.2019 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and issued summons to the accused on 28.09.2019. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 10.10.2022.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 10.02.2023 to which he pleaded not guilty and claimed trial. On 10.02.2023, proceedings u/s 294 CrPC were also conducted wherein the accused admitted copy of FIR No.140/19 dated 27.04.2019, certificate u/s 65 B of IEA, DD No.48A dated 27.04.2019, DD No.23 dated 27.04.2019 and excise result dated 12.06.2019.
Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:38:12 +0530 FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 2
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 03 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examination- cross-
witnesses Evidence. in-chief. examination
PW- HC Krishan (i) Seizure 28.08.2023 28.08.2023
1 memo -
Ex.PW1/A
(ii) Statement
of PW-1 -
Ex.PW1/B
(iii) Site plan
- Ex.PW1/C
(iv) Seal
handing over
memo -
Ex.PW1/D
(v) Disclosure
statement of
accused -
Ex.PW1/E
(vi) Personal
search memo
- Ex.PW1/F
(vii) Arrest
memo -
Ex.PW1/G
(viii) Case
FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 3
Digitally signed
by SUKRITI
SUKRITI SINGH
SINGH Date:
2025.04.16
16:38:18 +0530
property -
Ex.P1
(ix)
Confiscation
order
alongwith
photograph -
Ex.P2 (colly)
PW- HC Rakesh NIL 22.11.2023 22.11.2023
2 Kumar
PW- ASI Gajraj (I) Form 21.05.2024 21.05.2024
3 M-29 -
Ex.PW3/A
(ii) Tehrir -
Ex.PW3/B
2.2 PW-1 was HC Krishan who deposed that on 27.04.2019 he was
posted at PP Raghubir, PS Khyala as constable and was on duty. On that day, he alongwith Ct. Rakesh were on patrolling duty in the area of PS Khyala. At around 08.50 pm, when they reached near Ganda Nala Road, Raghubir Nagar they saw one person having one white colour gatta petti on his shoulder and was going towards the houses near 12.5 Gaj, Ganda Nala Road, Raghubir Nagar. They found him suspicious and he was apprehended by them. On being asked, the said person revealed his name as Deepak Chaudhary.
Thereafter, the said gatta petties were checked and they were found to be 08 in number. The said gatta pettes were found containing quarters of illicit liquor. Thereafter, PW-1 transmitted the abovesaid information to the Duty FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 4 Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:38:23 +0530 Officer, PP Raghubir Nagar and on the basis of the same, HC Gajraj came to the spot and they handed over the custody of accused alongwith gatta petties to him. HC Gajraj checked the gatta petties and they were found containing 48 quarter bottles in each gatta petties bearing the label of 'Impact Grain Whisky for sale in Haryana only' 180 ml each. In total, there were 384 quarter bottles. Thereafter, out of the said 08 gatta petties, one quarter bottle each was taken out as sample and moored with white cloth from the bottleneck and sealed with the seal of 'GR'. In total there were 8 quarter bottle samples and they were given serial no.1A - 8A respectively and the rest of the quarter bottles were kept in the said 8 gatta petties and sealed with the seal of 'GR' and were given serial no.1-8 respectively . Form M-29 was prepared by HC Gajraj and after seizure, the seal was handed over to PW-1. The seizure memo with regard to liquor was prepared. Thereafter, HC Gajraj recorded statement of PW-1 and on the basis of the same, tehrir was prepared by HC Gajraj and was handed over to Ct. Rakesh for registration of FIR. In the meantime, HC Gajraj prepared the site plan at the instance of PW-1 and Ct Rakesh went to the police station and got the FIR registered. After registration of FIR, he returned to the spot and handed over the original tehrir and copy of FIR to HC Gajraj. Thereafter, the FIR number was put on the abovementioned documents. HC Gajraj prepared the seal handing over memo. Thereafter, the disclosure statement of accused was recorded. Accused Deepak was personally searched and arrested vide memos respectively. After the medical examination of accused Deepak, he was sent to lock up and the case property was deposited in the malkhana. IO recorded statement of PW-1. The witness was duly cross-examined by the defence.
FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 5 Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:38:28 +0530 2.3 PW- 2 was HC Rakesh Kumar who deposed that on 27.04.2019 he was posted at PP Raghubir Nagar, PS Khyala as constable and was on duty.
On that day, he alongwith Ct. Krishan were on patrolling duty in the area of PS Khyala. At around 08.50 pm, when they reached near Ganda Nala Road, Raghubir Nagar they saw one person having one white colour gatta petti on his shoulder and was going towards the houses near 12.5 Gaj, Ganda Nala Road, Raghurbir Nagar. They found him suspicious and he was apprehended by them. On being asked, the said person revealed his name as Deepak Chaudhary. Thereafter, the said gatta petties were checked and they were found to be 8 in number. The said gatta pettes were found containing quarters of illicit liquor. Thereafter, Ct. Krishan transmitted the abovesaid information to the Duty Officer, PP Raghubir Nagar and on the basis of the same, HC Gajraj came to the spot and they handed over the custody of accused alongwith gatta petties to him. HC Gajraj checked the gatta petties and they were found to be containing 48 quarter bottles in each gatta petties bearing the label of 'Impact Grain Whisky for sale in Haryana only' 180 ml each. In total, there were 384 quarter bottles. Thereafter, out of the said 8 gatta petties, one quarter bottle each was taken out as sample and moored with white cloth from the bottleneck and sealed with the seal of 'GR'. In total there were 8 quarter bottle samples and they were given serial no.1A - 8A respectively and the rest of the quarter bottles were kept in the said 8 gatta petties and sealed with the seal of 'GR' and were given serial no. 1-8 respectively. Form M-29 was prepared by HC Gajraj and after seizure, the seal was handed over to PW-2. Thereafter, HC Gajraj recorded statement of HC Krishan and on the basis of the same, tehrir was prepared by HC Gajraj and was handed over to PW-2 for FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 6 Digitally signed by SUKRITI SUKRITI SINGH Date: SINGH 2025.04.16 16:38:34 +0530 registration of FIR. PW-2 went to the PS and got the FIR registered. After registration of FIR, PW-2 returned back to the spot and handed over the original tehrir and copy of FIR to HC Gajraj. Thereafter, the FIR number was put on the abovementioned documents. HC Gajraj prepared the seal handing over memo. The seal after use was handed over to Ct Krishan. Thereafter, the disclosure statement of accused was recorded. Accused Deepak was personally searched and arrested vide memos respectively. After the medical examination of accused Deepak, he was sent to lock up and the case property was deposited in the malkhana. IO recorded statement of PW-2. The witness was duly cross-examined by the defence.
2.4 PW- 3 was ASI Gajraj who deposed that on 27.04.2019 he was posted at PP Raghubir, PS Khyala as Head constable and was on duty. On that day, the present case was received by him vide DD No 23. Then he reached the spot near Ganda Nala Road, Raghubir Nagar at around 09.15 PM where he met Ct. Krishan and Ct. Rakesh who handed over the custody of the accused Deepak Chaudhary and case property to him. Then, PW-3 asked 4-5 public persons to join the investigation but they refused the same and left the spot without disclosing their name and address. Due to paucity of time, no notice was served to them. Thereafter, PW-3 recorded the statement of Ct. Krishan and thereafter, he checked the recovered 8 gatta pettis containing 48 quarter bottles of illicit liquor in each gatta petties bearing the label of 'Impact Grain Whisky for sale in Haryana only' 180 mi each. In total, there were 384 quarter bottles. Thereafter, out of the said 8 gatta petties one quarter bottle each was taken out as sample and moored with white cloth from the bottleneck and FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act Digitally 7 signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:38:40 +0530 sealed with the seal of 'GR'. In total there were 8 quarter bottle samples and they were given serial no.1A-8A respectively and the rest of the quarter bottles were kept in the said 8 gatta petties and sealed with the seal of 'GR' and were given serial no. 1-8 respectively. After sealing, the seal was handed over to Ct. Krishan and the abovesaid liquor as well as sample were seized vide seizure memo. Form M-29 was prepared by PW-3. Thereafter, tehrir was prepared by PW-3 and was handed over to Ct. Rakesh for registration of FIR. He went to the police station and got the FIR registered. After registration of FIR, he returned back to the spot and handed over the original tehrir and copy of FIR to PW-3. Thereafter, the FIR number was put on the abovementioned documents. Thereafter, the disclosure statement of accused was recorded as narrated by him. Accused Deepak was personally searched and arrested vide memos. After the medical examination of accused Deepak, he was sent to the lock up and the case property was deposited in the malkhana. Then, on the next day, i.e, on 28/04/2019, accused was produced in the concerned court. PW-3 had recorded the statements of all the witness u/s 161 CrPC and also sent the samples for depositing them in the Excise Lab through Ct. Kanwar Singh on 14.05.2019 vide RC No.94/21/19 and after obtaining the result of the same, PW-3 had filed the chargesheet in the concerned court. The witness was duly cross-examined by the defence.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 The prosecution evidence was closed upon submissions on behalf of the State on 09.01.2025. After the prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 8 Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:38:45 +0530 separately on 04.03.2025 wherein he denied the allegations and tendered explanation that he had been falsely implicated and nothing was recovered from his possession. He opted not to lead any DE in his defence.
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused person was apprehended with the case property which was recovered from him and on a combined reading of prosecution witnesses' testimony, offence under section 33/38 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused person.
4.2 On the other hand, Ld. Counsel for the accused person has argued that there is no legally admissible evidence against the accused person and that the accused person has been falsely implicated in the present case. He submitted that no videography, photography, examination of any public witness was done hence the recovery was doubtful. He argued that prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government. Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:38:51 +0530 FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 9 5.2 Section 33 of Delhi Excise Act, 2009 states that:
'whoever, in contravention of provisions of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees'.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
'whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 10 Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:39:02 +0530 for a term which may extend to six months and fine which may extend to one lakh rupees'.
5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, several doubts have been created over the factum of alleged recovery from the accused. To begin with, the apprehending witnesses i.e. PW1 and PW2 have failed to place any DD entry regarding their patrolling duty on record while PW1 stated a DD entry number and PW2 did not recall the same. It is also abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities. PW-1 and PW-2 stated in their respective examinations-in-chief that accused was apprehended in residential locality and the IO had asked public persons to join the investigation but none had joined. However in their cross-examination PW1 and PW2 refuted the same and stated that IO had not asked any independent public person to join the proceedings in their presence. However IO maintained in his cross-
examination that he had asked public persons to join the investigation but admitted that no notice was served and their names and addresses were not noted.
5.5 When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act Digitally 11 signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:39:06 +0530 failed to take any required steps in terms of provisions of Cr.P.C and IPC as noted below.
Section 100(4) Cr.P.C states that,"before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or (b) in the prevention of suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property". Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested Digitally by such officer in order that his name or signed by SUKRITI SUKRITI SINGH residence may be ascertained. SINGH Date:
2025.04.16 (2) When the true name and residence of such 16:39:12 +0530 persons have been ascertained, he shall be FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 12 released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six Digitally signed by SUKRITI months, or with fine which may extend to five SUKRITI SINGH Date:
SINGH 2025.04.16 hundred rupees, or with both". 16:39:17 +0530 FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 13 5.6 The importance of getting independent witnesses to join the investigation has been laid out by the superior courts in a catena of judgments.
In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, the Hon'ble High Court of Punjab and Haryana observed that such explanations that public persons refused to join the proceedings are unreliable. Moreover, the Hon'ble Supreme Court of India also noted in the case of Pradeep Narayana Vs. State of Maharashtra AIR 1995 SE 930 that failure of the police to get persons from the locality to join the investigation during search creates doubt about its fairness, benefit of which has to be given to the accused. In the present matter, hence, the chances of false implication and planted recovery, as alleged by the defence, cannot be ruled out.
5.7 There are other discrepancies casting a doubt over the prosecution chain of events. For instance, PW-1 and PW2 had stated in the cross- examination that seal handing over memo was prepared at the PS, in contradiction to their examination-in-chief. Moreover, PW2 stated that he had taken the tehrir to the police Station and returned at 11:00 PM, while also having earlier stated that he finally left the spot with the other police officials at 11:00 PM, failing to explain when the interim proceedings took place. PW1 did not recall any such time while PW3 stated that PW2 took the rukka at 10:30 PM, returned at 11:00 PM and they all left the spot at 11:45 PM. There is also a contradiction in the statement given regarding mode of transporting the case property back to the police station. PW1 and PW3 claimed that the case property was taken to the police station in an e-rickshaw but failed to give any particulars of such vehicle or its driver. On the other hand, PW2 FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 14 Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:39:22 +0530 claims that the case property was taken in the private car of the IO. It is also noted that the IO did not recall the particulars of his own personal vehicle. These internal contradictions between the statements of the witnesses were never reconciled by the prosecution and prove a break in the chain of prosecution version of events.
5.8 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. As already recorded, PW2 gave an internally contradicting statement regarding who the seal was handed over to.
Admittedly, the seal was never handed over to any independent person and remained with the officials of the same police station, if not the IO himself. Tampering with the case property as well as the seal cannot be ruled out in such a case as it remained within the reach of the IO. No independent witness was examined with respect to the same and no photography or videography was done during recovery, sealing or seizure proceedings. In a case where only police witnesses are available, it becomes incumbent upon such officials to comply with all procedural requirements and failure of the same shall work in the favour of the accused. Further all the witnesses admitted that no identification or batch number of the remaining case property was noted so the prosecution has nothing on record to corroborate the contents of the destroyed property with contents of the sample bottles sent to the Excise Lab.
5.9 The cardinal principle of law that the prosecution has to prove its case beyond all reasonable doubts, remains the dictating factor. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 15 Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.04.16 16:39:27 +0530 all reasonable doubt. It is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is apparent that the case of the prosecution suffers from several glaring loopholes and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to convict the accused merely on the basis of testimony of the police officials. Hence, accused Deepak Chaudhary S/o Bupender Chaudhary is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance Digitally signed by SUKRITI SUKRITI SINGH ANNOUNCED IN THE OPEN SINGH Date:
2025.04.16 COURT ON 16.04.2025 16:39:31 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 16 pages, all signed by the presiding officer Digitally signed by SUKRITI SINGH SUKRITI Date:
SINGH 2025.04.16
16:39:34
+0530
(SUKRITI SINGH)
JUDICIAL MAGISTRATE
FIRST CLASS-04/WEST/
TIS HAZARI COURTS/DELHI
FIR No. 140/2019 State Vs Deepak Chaudhary U/s 33/38 Delhi Excise Act 16