Delhi District Court
State vs Ramji Jitender Rai on 2 April, 2025
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Ram Jitender Rai etc.
FIR No : 78/2016
U/s : 33/38/52.2 Delhi Excise Act
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020207032019
2. Date of commission of offence : 01.05.2016
3. Date of institution of the case : 30.04.2019
4. Name of the complainant : Ct. Parveen
5. Name of accused, parentage & : 1. Ram Jitender Rai
address S/o Narain Rai
R/o H. no.C-99, Block-
C, Village Badli, New
Delhi
2. Mukesh Kumar
S/o Azad Singh
R/o Village Jatkhod,
New Delhi.
6. Offence complained of : 33/38/52.2 Delhi
Excise Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 02.04.2025
Argued by:- Mr. Amit Sehrawat, Ld. APP for the State
Mr. Rampal Shokeen, Ld. Counsel for accused
Mukesh Kumar.
Digitally signed
by ABHINAV
ABHINAV AHLAWAT
FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 1 of 20 AHLAWAT Date:
2025.04.02
16:02:25 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 01.05.2016 at about 01:30 AM, at Bakkar Garh Picket, New Delhi, accused Ram Jitender Rai was found keeping illicit liquor in Tata-407 bearing registration no.DL-1LK-0293, which belonged to accused Mukesh Kumar, and thereby committed the offences punishable under Sections 33/38/52(2) of Delhi Excise Act for which FIR no.78/2016 was registered at the police station Jafarpur Kalan, New Delhi.
2. The present judgment pertains to accused Mukesh Kumar only as accused Ram Jitender Rai was declared absconder vide order dated 01.04.2019. Thereafter proceedings qua accused Ram Jitender Rai were proceeded as per section 299 crpc.
INVESTIGATION AND APPEARANCE OF ACCUSED
3. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this court took the cognizance against the accused Mukesh kumar and summons were issued to him. On his appearance, a copy of the chargesheet was supplied to him in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused Mukesh Kumar, charge under Section 33/38/52(2) of Delhi Excise Act was framed against him on 23.12.2021. The accused pleaded not guilty and claimed trial.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 2 of 20 Date:
AHLAWAT 2025.04.02 16:02:31 +0530 PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW-1 HC Praveen Kumar PW-2 Mukesh Kumar Bharti PW-3 SI Banwari Lal PW-4 Kanwal Jeet Singh @ Monti Chhabra PW-5 HC Ram Niwas PW-6 HC Neeraj Phogat PW-7 SI Virender Singh PW-8 Satender Kumar DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant Ex.PW1/B Seizure memo qua case property Ex.PW1/C Seizure memo qua offending vehicle Ex.PW1/P1 Confiscation order dted 27.12.2018 Ex.PW1/P2 Destruction order dated 27.12.2018 Ex.PW1/P3 Photograph of illicit liquor Ex.PW1/P4 Photograph of offending vehicle Ex.PW1/P5 Sample bottle of Asli Santra Desi Sharab Ex.PW1/P6 Sample bottle of Impact Grain whiskey Ex.PW2/A Ownership record of Tata 407 bearing no.DL-1LK-0293 Ex.PW2/B Certified copy of record of said vehicle Ex.PW2/C Certified copy of record of said vehicle Ex.PW3/A Notice to MLO to verify registered owner of Tata-407 Ex.PW3/B Notice to previous owner Mukesh Kumar Ex.PW3/C Reply to notice by Mukesh Kumar Ex.PW3/D Notice u/S 41A Cr. P.C. Ex.PW5/A Site plan Ex.PW6/A Tehrir Ex.PW6/B Letter to Rajapura Burari Authority for obtaining details of Tata-407 Ex.PW7/A Application for issuance of NBWs against accused Ram Jitender Rai Ex.PW7/B Application for issuance of process u/S 82 Cr.
P. C. against accused Ram Jitender Rai Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 3 of 20 AHLAWAT Date:
2025.04.02 16:02:36 +0530 Ex.PW8/1 Form no.29 and 30 Ex.PW8/2 Authority letter ADMITTED DOCUMENTS Ex.A1 FIR no.78/2016 along with Certificate under Section 65B of Indian Evidence Act Ex.A2 DD no.26A dated 01.05.2016 Ex.A3 DD no.20A dated 01.05.2016 Ex.A4 Excise Control Laboratory Reports Ex.A5 Entry in register no.19 and 21
5. To prove its case, prosecution examined the following witnesses, the same are as follows.
PW1 HC Praveen Kumar deposed that on 01.05.2016, he alongwith HC Pooran Mal and Ct. Ram Niwas on duty at picket Bakhargarh. He stated that on that day, they were checking the vehicles coming towards Delhi and at about 10:30 am, while they were checking the vehicle, one TATA 407 bearing registration no.DL- ILK-0293 came there and they asked to the driver for checking to park the vehicle side as there were several vehicles for checking. He stated that due to large number of vehicles, the driver of the said vehicle ran away from there taking benefit of the gathering of vehicles. He stated that he checked the said vehicle and found huge amount of liquor and there were 125 pettis in which each pettis were containing 48 quarter bottles (pauve) and 24 pettis which each containing 50 quarter bottles. He stated that he informed to the duty officer of PS J. P. Kalan and after sometime ASI Prabhu Dayal came alongwith Ct. Neeraj from PS and recorded his statement Ex.PW1/A. He stated that on the basis of his statement, he prepared rukka and same was handed over to one Constable for registration of FIR, however, he did not remember the name of the Constable to whom it was handed over. He stated that he did not remember whether IO had prepared site plan at his instance and recovered illicit liquor was seized vide seizure memo Ex. PW1/B, however, he did not remember by which seal the case property was Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 4 of 20 AHLAWAT Date:
2025.04.02 16:02:41 +0530 sealed. He stated that the said vehicle was seized vide seizure memo Ex.PW1/C and the witness identified the order dt. 27.12.2018 wide order no. CA 9663/2018/441 regarding the confiscation vide Ex.PW1/P-1, report regarding destruction of case property dt. 27.12.2018 vide order no E.Comf/2018/7252-53 vide Ex.PW1/P-2 at serial no.15 two photographs regarding one of illicit liquor and another of vehicle Ex. PW1/P-3 and PW1/P-4. He further identified two sample bottles one is 180 ml. sale for Haryana only Asli Santra masaledar Desi sharab with unbroken tap vide Ex.PW1/P-5 and another Impact Grain whiskey for sale in Haryana only vide Ex.PW1/P-6. Thereafter, he was again called for identifying the signatures and writing of IO ASI Prabhu Dayal and he identified his signatures on various documents.
6. PW2 Mukesh Kumar Bharti brought requisite record regarding the ownership of the bearing registration no. DL1LK0293 make Tata Motors Ex.PW2/A (colly). He stated that as per the official report name of the owner of the above said vehicle is Ram Jitender Rai S/o Sh. Hit Narain Rai. He stated that he brought the ownership record of vehicle bearing registration no.DL1LK0293 as on date of offence i.e 01.05.2016 along with covering letter Ex.PW2/B (colly) and the record shows that as on 01.05.2016 that is the date of offence, the vehicle in question was registered in the name of Mr. Mukesh Kumar S/o Sh. Azad Singh. He stated that the same was transferred in the name of Ram Jitender Rai on 06.05.2016 and he proved certified copy of the transport department Ex.PW2/C. In the cross-examination, he stated that the application for transfer of the vehicle in question was dated 06.05.2016 as per record. He stated that he could not say as to how much time used to be taken by the department for completing the process of transfer after filling the application for Digitally signed by ABHINAV FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 5 of 20 ABHINAV AHLAWAT AHLAWAT Date:
2025.04.02 16:02:47 +0530 the same, in the year 2016. He stated that at present the department was obligated to complete the said process within a time period of 21 working days.
7. PW3 SI Banwari Lal deposed that in year 2019, investigation of the case was marked to him and he was the third IO of the present case. He stated that he observed that accused Ramji Jitender Rai was declared PO on 01.04.2019 by ASI Virender and thereafter, accused Ram Jitender Rai moved anticipatory bail application on 20.02.2019 and 18.04.2019 and he attended the same, the said application was dismissed. He stated that accused did not arrest as he was untraceable therefore, he prepared chargesheet U/s 33 Delhi Excise and 174A IPC and submit PO Charge-sheet. Thereafter, he further investigate the case on the directions of court regarding verification of the ownership of offending vehicle Tata 407 bearing no. DL1LK0293. He stated that he sent a notice to MLO Rajpura Road to verify the register owner of the said vehicle Ex.PW3/A and as per registration certificate, said vehicle was in the name of Ram Jitender Rai and previous owner of the said vehicle was Mukesh Kumar and the offending vehicle was transferred in the name of accused Ram Jitender Rai on 06.05.2016. He stated that at the time of offence, offending vehicle was in the name of Mukesh Kumar and he served notice to previous owner Mukesh Kumar Ex.PW3/B and he gave reply to the said notice Ex.PW3/C. He stated that he served notice U/s 41A Cr.PC Ex.PW3/D and thereafter, he prepared supplementary chargesheet against accused as being owner of offending vehicle in which illicit liquor was transported. The witness correctly identified the accused present in the court. In the cross-examination, he stated that accused Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 6 of 20 Date:
AHLAWAT 2025.04.02 16:02:53 +0530 Mukesh was not present at the time of incident on 01.05.2016 and nothing illicit was recovered from the possession of accused Mukesh. He stated that the vehicle involved in the incident was sold by accused Mukesh to accused Ram Jitnder Rai prior to the incident and he had verified the Form 29 and 30 from the concerned authority. He stated that RC of the vehicle was subsequently registered in the name of Ram Jitender Rai and he did not remember the exact date but as per record it was 06.05.2016.
8. PW4 Kanwal Jeet Singh deposed that on 20.04.2016, he had facilitated the transfer/sale of vehicle Tata 407 bearing registration no. DL-1LK-0293 belonging to Mukesh, in favour of Ram Jitender Rai. Thereafter, he handed over the documents of transfer at the RTO office, Rajpura Authority for change of ownership after one or two days. He stated that IO had recorded his statement and he had handed over delivery receipt, Form No- 29 and 30, copy of ID cards of purchasing party to the IO. In the cross-examination, he stated that he handed over the vehicle to accused Ram Jitender Rai on 20.04.2016 at 02:00 pm.
9. PW5 HC Ram Niwas deposed regarding accused Ram Jitender Rai under Section 299 Cr. P. C. He deposed on the lines of PW1. He additionally tendered site plan Ex.PW5/A. In the cross- examination, he stated that he had seen the driver of the vehicle, who was not present in the Court.
10. PW6 HC Neeraj Phogat deposed that on 01.05.2016, ASI Prabhu Dayal received DD no.20A Ex.A3 and he alongwith ASI Prabhu Dayal reached at the spot where they met with Ct. Praveen, HC Pooran Mal and Ct. Ram Niwas. He stated that after reaching the Digitally signed by ABHINAV FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 7 of 20 ABHINAV AHLAWAT Date: AHLAWAT 2025.04.02 16:05:34 +0530 spot, they handed over the custody of case property to ASI Prabhu Dayal i.e. Tata 407 bearing no.DL-1LK-0293 and IO checked the said tempo and found 149 boxes of illicit liquor. He stated that IO took out one sample bottle from each box and sealed with the seal of PD and IO also sealed the remaining case property with the seal of PD. He stated that IO also filled Form M-29 at the spot and seal after use was handed over to him. He stated that IO recorded statement of complainant Praveen in his presence and IO prepared tehrir Ex.PW6/A in his presence and got the FIR registered through him. He stated that IO prepared the site plan in his presence and seized the case property i.e. illicit liquor and tempo. He stated that he alongwith IO and case property left the spot and reached the PS and after reaching the PS, IO deposited the case property in malkhana. He stated that IO also sent request letter to Rajpur / Burari Authority for obtaining the ownership details of said Tata 407 in his presence Ex.PW6/B and he identified the signatures of IO ASI Prabhu Dayal on notice u/S 91A Cr. P. C. served to Mukesh Kumar and Ramji Jitender Roy at point A. He stated that IO also recorded his statement u/s 161 Cr. P. C. during investigation and he also deposited the sample at Excise Laboratory. In the cross- examination, he stated that he was not the eye-witness of the recovery of the case property from the said tempo and accused was not found at the spot when they reached there.
11. PW7 SI Virender Singh deposed regarding moving of application before concerned court for obtaining NBWs and process u/S 82 Cr. P. C. against accused Ram Jitender Rai Ex.PW7/A and Ex.PW7/B. Thereafter on 01.04.2019, the concerned court declared accused Ram Jitender Rai as proclaimed offender. He Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
2025.04.02 FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 8 of 20 16:05:38 +0530 stated that he also clicked the photographs of the house of accused when he pasted process u/S 82 Cr. P. C. on the gate of the house where the abovesaid accused was residing and the photographs are marked as Mark Z (colly).
12. PW8 Satender Kumar deposed that he had been authorized by DTO to appear in the present case and depose on behalf of DTO, Headquarter. He had brought the record of vehicle bearing registration no.DL-1LK-0293 and as per their record, the said vehicle was registered on 19.05.2008 in the name of Mukesh Kumar S/o Azad Singh and the said vehicle was transferred in the name of Ram Jitender Rai S/o Hit Narayan vide application dated 06.05.2016. He stated that as per their record, Form no.29 and 30 regarding the sale and purchase of the said vehicle was executed between Mukesh Kumar and Ram Jitender Rai on 20.04.2016 as date was mentioned on the said Forms and he proved the authority letter and abovesaid record as Ex.PW8/1 and Ex.PW8/2 (colly).
13. On account of admission of accused persons u/s 294 Cr.P.C, remaining in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined; hence, P.E. was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
14. Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 9 of 20 Date:
AHLAWAT 2025.04.02 16:05:42 +0530 was recorded on 26.09.2024 without oath under section 281 r/w 313 CrPC, wherein he has stated that he was innocent and had falsely been implicated in the present case. He further stated that he was the owner of the said Tata-407 bearing no.DL-1LK-0293 and he had procured permanent job in DTC and for the same reason he sold out the abovesaid Tata-407 to Raj Jitender Rai on 20.04.2016 and the abovesaid Tata-407 was in the possession and used by Ram Jitender Rai after 20.04.2016. He further stated that he does not want to lead defence evidence.
FINAL ARGUMENTS
15. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
16. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offence.
17. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 10 of 20 AHLAWAT Date:
2025.04.02 16:05:47 +0530 to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE
18. Before embarking upon the appreciation of evidences, it would be appropriate to reproduce the provisions of offences for which the accused has faced trial:-
In order to sustain conviction under Section 33 of Delhi Excise Act, prosecution is required to prove the following ingredients:
(i) Accused was found in possession of the illicit liquor and
(ii) He was possessing the same without any licence / permit.
19. The accused has been charged for the offence of being owner of vehicle in which illicit liquor was transported under Section 33 of Delhi Excise Act in the present case. The prosecution has also required to prove that the accused was possessing the illicit liquor without having any licence/ permit in that regard.
20. It is also significant to note that Section 52 of Delhi Excise Act lays down a rebuttable presumption which goes as follows:
"Section 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. ........."Digitally signed by ABHINAV
ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 11 of 20 Date:
AHLAWAT 2025.04.02 16:05:52 +0530 APPRECIATION OF EVIDENCE
21. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the Court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. 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.
22. 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, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible, owing to which, no presumption, as provided for under Section 52 of the Act, can be raised against the accused in the present case.
The non-joining of any independent / public witness.
23. It is evident from the testimony of the prosecution witnesses that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by Digitally signed by ABHINAV AHLAWAT ABHINAV FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 12 of 20 Date:
AHLAWAT 2025.04.02 16:05:56 +0530 the prosecution. Apparently, PW1 HC Praveen Kumar had stated in his examination that due to large number of vehicles present at th time of checking at the picket, the driver of the said vehicle ran away from there taking benefit of the gathering of vehicles. It is clear that the spot where the vehicle was caught, it is very natural that there were public persons present at the spot. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. It is repeatedly laid down by this Court 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 evidence 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."
24. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"........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. The explanation furnished by the prosecution is that the independent witnesses were asked to join the Digitally signed by ABHINAV AHLAWAT ABHINAV FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 13 of 20 Date:
AHLAWAT 2025.04.02 16:06:00 +0530 investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
25. It is well settled principle of the law that the Investigating 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 as stated by the wtinesses but no serious efforts were undertaken by the investigating agency to join them. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join and 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 the witnesses from the public had refused to join the investigation, the IO 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 afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
26. In fact, in this regard, Section 100 of the Cr.PC also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable Digitally signed by ABHINAV AHLAWAT ABHINAV FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 14 of 20 AHLAWAT Date:
2025.04.02 16:06:05 +0530 inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence.
Under Section 100(8) Cr.PC, refusal to be a witness can render such non-willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity as per the version of investigating officer, makes the prosecution version highly doubtful.
27. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much-needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
Possibility of misuse of seal of the investigating officer.
28. As per the version of the prosecution witnesses, after sealing the case property and the samples of illicit liquor with the seal of "PD", the seal was handed over to PW6 HC Neeraj Phogat. However, PW6 HC Neeraj Phogat was a part of the investigation in the present case who admitted in his deposition that seal after Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 15 of 20 AHLAWAT Date:
2025.04.02 16:06:09 +0530 use was handed over to him. Moreover, the seal handing over memo has not been prepared. In addition to this, there is no taking over memo on record to show as to when the seal was taken back from PW6 HC Neeraj Phogat or if it remained with him forever. This assumes great significance owing to the fact that the sample was sent to Excise Lab only on 22.06.2016, i.e. after a period of more than one and half months from the date of alleged seizure i.e. 01.05.2016. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. In addition to this, there is no taking over memo on record to show as to when the seal was taken back. Therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property. Thereby the circumstances under which the seal was obtained and used is under a shadow of doubt.
29. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....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. In the present case, the seal of Investigating Officer- Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."Digitally signed by ABHINAV AHLAWAT
FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 16 of 20 ABHINAV AHLAWAT Date:
2025.04.02 16:06:14 +0530
30. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
31. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
Other infirmities in the prosecution case
32. Furthermore, doubts are raised with respect to false implication of accused from the fact that although all the prosecution witnesses remained at the spot for considerable period of time but no photographs of the case property or the vehicle or the spot were taken. No efforts were taken to lift chance prints of the accused person from the vehicle or the illicit liquor which could have lend credence to the prosecution version.
33. Fact of the accused being present at the spot is shrouded with clouds of ambiguity and cast doubt over the actual presence of the accused at the spot as no credible piece of evidence has been brought by the prosecution, rendering the version of the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 17 of 20 AHLAWAT Date:
2025.04.02 16:06:20 +0530 prosecution unworthy of credit and giving rise to the suspicion that the accused has been falsely implicated in the present case.
34. Lastly, accused/owner of the vehicle Mukesh Kumar has been arraigned as an accused in the instant FIR merely on the basis of the presumption contained in section 52 (2) of the Delhi Excise Act. 2009. To rebut the above said presumption, the accused has not led any defence evidence and his only version is that he has been falsely implicated in the present case. During the course of investigation, PW3 sent the notice to MLO Rajpura for verifying the ownership of the offending vehicle and the vehicle was found in the name of other accused Ramji Jitender Rai Ex.PW2/C. IO further procured Form no.30 MV Act as per which the previous owner was accused Mukesh who had sold it to accused Ramji Jitender Rai. Perusal of Form no.30 Mark A wherein the previous owner Mukesh transferring the ownership of vehicle bearing no.DL-1LK-0293 to Ramji Jitender Rai dated 20.04.2016 whereafter accused Ramji Jitender Rai got RC transferred in his name. The date of alleged incident is 01.05.2016 whereas as per form no.30 the transfer proceedings of the vehicle was done on 20.04.2016 thereby there is nothing on record against accused Mukesh to show that he was the registered owner on the date of alleged incident. Accused Mukesh Kumar during the final arguments stated that he had given the vehicle in question to accused Ram Jitender Rai for his miscellaneous work and he had no idea that he would use the same for any carrying illicit liquor.
35. Ld. Counsel for accused Mukesh Kumar stated that prosecution has not been able to prove the primary offence of section 33 Delhi excise act and accused Mukesh Kumar be accordingly be granted benefit of doubt.
Digitally signed by ABHINAVABHINAV AHLAWAT Date: FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 18 of 20 AHLAWAT 2025.04.02 16:06:27 +0530
36. As commission of offence under section 33 Delhi Excise Act is not made out as discussed in the foregoing paragraphs, accordingly, owner of the vehicle used in the alleged commission of the offence cannot be imputed with liability under the Act. Accordingly, presumption under Section 52 (2) Delhi Excise Act based upon which accused Mukesh Kumar was implicated does not arise.
CONCLUSION
37. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. When the presence itself of the accused is not established by the prosecution with cogent evidence thereby accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
38. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 19 of 20 Date:
AHLAWAT 2025.04.02 16:06:34 +0530 prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
39. Accordingly, this Court hereby accords the benefit of doubt to the accused Mukesh Kumar is held not guilty of commission of the offence u/S 52(2) of Delhi Excise Act and is thus acquitted of the said offence.
Digitally signedAnnounced in the open court ABHINAV by ABHINAV AHLAWAT on 02.04.2025 in the presence AHLAWAT Date: 2025.04.02 16:06:40 of the accused persons. +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/02.04.2025
Note:- This judgment contains 20 pages and each page has been signed by me. Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
2025.04.02 16:06:45 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/02.04.2025 FIR No. 78/2016, PS Jafarpur Kalan State vs. Ram Jitender Rai etc. Page 20 of 20