Delhi District Court
State vs Deepak on 6 June, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-08 (CENTRAL), TIS HAZARI COURTS : DELHI
PRESEDED OVER BY : MS. SAYESHA CHADHA, DJS
FIR No. 131/2019
PS : Kamla Market
U/s 33 Delhi Excise Act
State vs. Deepak
Date of Institution of case: 03.03.2021
Date when Judgment reserved: 06.06.2025
Date on which Judgment pronounced: 06.06.2025
JUDGMENT
A. Case No. : 2600/2021
B. Date of Institution of Case : 03.03.2021
C. Date of Commission of Offence : 03.07.2019
D. Name of the complainant : Ct. Vijay
E. Name of the Accused : Deepak s/o Sh. Rakesh
& his parentage and residence R/o 1308, B Block, Gali
no.18, Sonia Vihar, Delhi.
F. Offences complained of : U/s 33 Delhi Excise Act
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquittal
I. Date of such order : 06.06.2025
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. Breifly stated that on 03.07.2019, at about 11:00 PM, in front of Hamdard Chowk, near bank Ashaf Ali Road, Delhi falling within the jurisdiction of PS Kamla Market, accused was found in possession of 155 quarter bottles of illicit liquor as mentioned in seizure memo Mark X without any license or State Vs. Deepak FIR No. 131/19 PS Kamla Market 1/16 permit as required by Delhi Excise Act and thereby, accused committed an offence punishable U/s 33 Delhi Excise Act.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under sections 33 Delhi Excise Act was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution examined 4 (four) witnesses in support of its case:
5. PW-1 HC Lalit Kumar has deposed that on 03.07.2019, he was on a emergency duty on the above mentioned date. The DO informed him that he had to go alongwith ASI P. R. Patnaik, who was the first IO of this case. He along with the IO went to Hamdard Chowk, Asaf ali Road, Kamla Market near Ram Leela Ground. When he reached at above mentioned address, he saw Cr. Vijay along with accused already present. Thereafter, they seized 155 quarter bottles of illicit liquor with the brand name "Frost Falcon Distillones Lions Steel for sale in Haryana only.
State Vs. Deepak FIR No. 131/19 PS Kamla Market 2/16 They took out two quarter bottles of the said liquor for sampling and rest of 153 quarter bottled were kept in a white colour cloth with the seal of "PRP". The seizure memo of the same exhibited as Ex. PWT/A, bearing his signature at point A. Thereafter, they arrested accused vide arrest memo, exhibited as Ex. PW1/B, bearing his signature at point A. they also conducted his personal search Ex. PW1/C, bearing his signature at point A. Thereafter, tehrir was prepared by the IO and it was handed over to him for the registration of the FIR. After registration of the FIR, he brought back the original tehrir and copy of the FIR handed over to the IO. He has correctly identified accused. MHC(M) also produced one photograph depicting a white colour Katta which was sealed marked as P-1/S. MHC(M) produced a copy of the order of destruction of the liquor by Asstt. Commissioner (Excise) vide Order NO. Con/Misc./2021/4408-09 dated 27.12.2021 marked as Mark-P1X. MHC(M) also brought the order of confiscation by the Asstt. Commissioner (Excise) vide order no. 16982/2019/2589 dated 17.07.20200, marked as Mark- P1Z. MHC(M) also brought one quarter bottle of "Santra Desi Sharab" with brand name of "Frost Falcon Distilleries" with the seal of "KM2".
6. During cross-examination, PW-1 stated that he did not make the departure entry at the time of going to the spot as it is the job of DO to do so. They left the police station at around 11.15 p.m. The place of incident was about 800 meters from the police station Kamla market. They went by walking. They reached at the spot at around 11.30 pm. They did not meet any public witness, when they reached at the spot. There was no open State Vs. Deepak FIR No. 131/19 PS Kamla Market 3/16 shops at the time when we reached the spot. He was not aware whether notices were served to the public to join the investigation. The IO took out two quarter bottles for the purpose of sampling. He did not remember the seal which was placed on the seized quarter bottles. The arrest memo was prepared at around 1.15 am (night) at the spot. He took the accused for medical examination in LNJP Hospital at around 1.20 am to 1.30 am (night). He went went the tehreer for the registration of FIR at around 12.10 am. The FIR was registered at around 12.20 a.m. and he returned back to the spot at around 12.30 a.m. he denied that he was deposing falsely.
7. PW-2 HC Vijay Kumar has deposed that on 03.07.2019, he was posted as Constable at PS Kamla Market. O that day, he was on patrolling duty at Hamdard Chowk, Asif Ali Road and Ramleela Ground. On that day at about 11:00 p.m, when he was present near Hamdard Chowk, one secret informer met him and informed him that one chowmein Rehriwala was selling illicit liquor which was kept in one yellow color plastic katta in front of Hamdard Chowk and can be apprehended with illicit liquor, if raided now. Thereafter, he went to the said spot i.e. front of Hamdard Chowk and check the said Rehri and illicit liquor (for sale in Haryana only) was found in possession of accused whose name on enquiry was revealed as Deepak. He apprehended accused. Thereafter, he informed about the incident to the Duty Officer, PS Kamla Market telephonically. After sometime, IO/ASI P P Patnayak along with Const. Lalit came at the spot. He handed over the custody of accused Deepak along with case property i.e., illicit liquor contained in plastic katta to the IO. IO State Vs. Deepak FIR No. 131/19 PS Kamla Market 4/16 recorded his statement Ex.PW2/A bearing his signature at point A. IO requested to public persons to join the investigation but all of them refused and left the spot without disclosing their name and addresses. Due to paucity of time no notice was served upon them. Thereafter, IO checked the said katta and found 155 quarter bottles of Desi Sharab (for sale in Haryana only). Each quarter bottle was labeled Frost Falcon Distilleries Ltd. (for sale in Haryana only). IO took out two quarter bottles as sample from the abovesaid katta and kept the 153 quarter bottles in the same katta and sealed the mouth of the katta with the seal of 'PRP' and gave the katta serial no. 1A. IO sealed the mouth of two sample quarter bottles with the 'PRP' and gave them serial no. 1 and 2. IO seized the abovesaid case property vide Seizure memo Ex.PW1/A bearing his signature at point B. IO prepared the form-M29 at the spot. IO prepared the Tehrir / Rukka and handed over the same to Ct. Lalit for registration of FIR at about 12:15 am. Accordingly, Ct. Lalit went to PS got the FIR registered and came back to the spot and handed over the copy of FIR and original Rukka to the IO. Thereafter, IO prepared the Site Plan at his instance Ex.PW2/B bearing his signature at point A. IO arrested accused and carried out his personal search vide memos Ex.PW1/B and Ex. PW1/C both bearing his signature at point B. IO recorded the disclosure statement of the accused Ex.PW2/C bearing his signature at point A. Accused was taken to the LNJP hospital for medical examination and was later on, put behind the bars of the lockup of the PS and IO deposited the case property in the Malkhana. Thereafter, IO recorded his supplementary statement and he was discharged. He has correctly State Vs. Deepak FIR No. 131/19 PS Kamla Market 5/16 identified accused. The case property was confiscated and destroyed as per the directions of the concerned ACP. The abovesaid confiscation and destruction orders Mark P1Z and Mark P1X. The photographs of the yellow plastic katta bearing the details of the present case marked as Mark P1/S. He has correctly identified one quarter bottle of Santra Desi Sharab with the brand name Frost Falcon Distilleries Ltd. (for sale in Haryana only) Ex.P1.
8. During cross-examination, PW-2 stated that he had not made the departure entry of patrolling on the said day as the same was done by Duty Officer in the regular course. He did not remember whether any CCTV Camera was installed at or near the spot on the date of incident. He admitted that no public person had joined the investigation in his presence. He reached the spot at 11:00 pm. He called the duty officer at approximately 11:02 pm. IO arrived at the spot at around 11:20 pm. The distance of the spot from the PS is 250-300 mtrs. He did not remember how IO came at the spot. He denied that the accused falsely implicated in the present case at the instance of IO. He denied that IO prepared all the documents while sitting at the PS. He denied that case property was planted upon the accused and no recovery was effected from the accused from the alleged spot of incident. He denied that he was deposing falsely.
9. PW-3 SI P R Pattanaik has deposed that on 03.07.2019, he was on emergency duty and received DD no. 97A regarding the apprehension of a person with illicit liquor. Thereafter, Ct. Lalit Kumar went to the spot i.e., hamdard chowk, Asaf Ali road, Kamla market near Ram Lila ground. At the spot, he met with Ct.
State Vs. Deepak FIR No. 131/19 PS Kamla Market 6/16 Vijay and he handed over the accused and case property to him. He checked the case property and found 155 quarter bottles of make Frost falcon Distelleries lions steel for sale in Haryana. He recorded the statement of the complainant Ex.PW-2/A bearing his signature at point B. He prepared the tehrir Ex.PW-3/A from point X to X1 bearing his signature at point A and handed over the same to Ct. Lalit for the registration of FIR. He took two quarter bottles for sample and sealed it with the seal of PRP. The remaining quarter bottles were kept in the same white plastic katta and also sealed it with the seal of PRP. The case property was seized vide memo Ex.PW-1/A bearing his signature at point A. After sometime, Ct. Lalit came back to the spot and handed over the copy of FIR and origianl tehrir him. He arrested the accused vide memo Ex.PW-1/B bearing his signature at point C. He conducted the personal search of the accused vide memo Ex.PW-1/C bearing his signature at point C. He recorded the disclosure statement of the accused Ex.PW-2/C bearing his signature at point B. He prepared the site plan at the instance of Ct. Vijay Ex.PW-2/B bearing his signature at point B. He also prepared M-29 form. He was transferred and he deposited the case file to MHC(R). He has correctly identified accused. It was observed that the destruction order, photographs and sample quarter bottles exhibited in the testimony of PW-1 and PW-2.
10. During cross-examination, PW-3 stated that he received the information regarding the incident at about 11:00 pm. He reached at the spot at around 11:10 pm on foot. The distance between the spot and PS is approx 400 meter. He did not made any separate DD entry of my departure. He did not remember the State Vs. Deepak FIR No. 131/19 PS Kamla Market 7/16 DD entry of his arrival. He did not remember the time when he returned back to the PS. He admitted that public persons were present at the spot. He did not remember the time when Ct. Lalit came back to the spot after registration of FIR, however, it was next day after 12:00 am. He requested to public persons to join the investigation but all of them refused and left the spot without disclosing their name and addresses. Due to paucity of time no notice was served upon them. No CCTV were installed near the spot. The incident happened near the bank. He did not remember the name of the bank. He denied that the accused falsely implicated in the present case. He denied that no case property was recovered from the accused. He denied that all the proceedings were conducted while sitting in the PS. He denied that he was deposing falsely.
11. PW-4 SI Rakesh Kumar has deposed that on 28.09.2020, he was posted as ASI at PS Kamla Market. On that day, the file of the present case was marked to him. He filed the chargesheet after inspecting the same with due care and attention.
12. During cross-examination, PW-4 admitted that he did not make any investigation in the present case and only filed the charge-sheet.
13. Vide separate statements of the accused recorded u/s 294 CrPC, the accused admitted the FIR Ex. A-1, certificate under Section 65 B, Indian Evidence Act Ex. A-2, GD No. 97A dated 03.07.2019 Ex.A3, endorsement on rukka Ex.A-4, Excise lab result Ex.A-5 and Form-29 Ex.A-6 without admitting the contents of the same.
14. Vide order dated 14.01.2025, PE was closed at the request State Vs. Deepak FIR No. 131/19 PS Kamla Market 8/16 of Ld. APP for the State.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
15. On 03.03.2025, statement of the accused u/s 313 Cr.PC was also recorded wherein accused denied the case of the prosecution and stated that he has been falsely implicated in the case and false case has been registered against him.
ARGUMENTS AND APPRAISAL
16. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution.
17. The record has been thoroughly and carefully perused. The respective submissions of the Ld. Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
18. 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.
19. 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 State Vs. Deepak FIR No. 131/19 PS Kamla Market 9/16 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.
20. 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 prerequisite 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. ABSENCE OF INDEPENDENT WITNESSES
21. Evidently, no public witness to the recovery of the liquor has been either cited in the list of witnesses or examined by the prosecution. The recovery is alleged to have been effected near Hamdard Chowk, Kamla Market. The spot of recovery as per the site plan Ex.PW2/B was located on a main road. The place of recovery and apprehension of the accused is, therefore, clearly State Vs. Deepak FIR No. 131/19 PS Kamla Market 10/16 located in an area where public persons would be readily available. The apprehension and recovery were allegedly made at about 11:00 pm. Thus, at the place and time of the alleged recovery of liquor and apprehension of the accused, public persons would in all likelihood have been present and available or have at least passed by the spot. It is not the case of the prosecution that no public person was present at or near the spot of arrest and recovery.
22. PW-1 and PW-2, in their cross-examination, stated that they did not ask certain public persons to join the proceedings. PW-1 and PW-2 further stated that no public witness came forward to give statement. Further, there is nothing on record to show that PW-1, PW-2 or PW-3 had served any notice under Section 160 Cr.PC. upon the persons who refused to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW-1, PW-2 or PW-3 to join public witnesses in the proceedings. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is well settled that, non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100 (4) of the Cr.P.C. 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 State Vs. Deepak FIR No. 131/19 PS Kamla Market 11/16 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 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 IO 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 State v. Om Prakash FIR No. 02/2011 P.S.: Baba Haridass Nagar Page 11 of 18 arrest or the recovery of the knife from the person of the accused."
23. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and Anr. v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
POSSIBILITY OF MISUSE OF SEAL OF THE INVESTIGATING OFFICER
24. As per the testimonies of the prosecution witnesses, the sample of liquor and case property were sealed by the investigating officer with the seal of PRP. No seal handing over memo was prepared. The seal in the present case was not handed over to any independent witness nor was it deposited in the malkhana to assail the possibility of its misuse. Thus, the State Vs. Deepak FIR No. 131/19 PS Kamla Market 12/16 possibility that the case property may have been tampered with cannot be ruled out.
SAMPLING DEFECTIVE
25. It has been stated by PW-1 in his examination-in-chief that the IO took out two quarter bottles as sample from the plastic katta that was seized. The said bottle was duly sealed and sent for FSL. Hence, it is admitted that out of all the bottles that were seized, only one bottle was sent for sampling and presence of alcohol was detected in the samples. Hence, it is evident that the prosecution has not been able to prove beyond reasonable doubt that all the bottles in the plastic katta were containing alcohol since only two bottles were sent to FSL for sample. SOURCE OF LIQUOR
26. There were no sincere efforts whatsoever made by the prosecution to have clues about the source from where illicit liquor was arranged by the accused. It could be a result of either a hasty investigation or a shoddy investigation but in either case, the benefit should go to the accused. In view of the last discussed ground, the real possibility of planting upon the accused, of the liquor otherwise seized/obtained further becomes strong because the police did not bother at all to discover the source of illicit liquor by seeking police custody of the accused, or taking any other steps for this purpose.
OTHER INFIRMITIES IN THE PROSECUTION CASE
27. PW-2 HC Vijay Kumar had deposed that IO PW-3 had seized the liquor vide memo Ex.PW-1/A. IO, PW-3 filled form M29 at the spot and thereafter prepared the rukka. It is, therefore, clear that the seizure memos of the liquor was prepared at the State Vs. Deepak FIR No. 131/19 PS Kamla Market 13/16 spot before the rukka was sent to the police station for registration of the FIR. The FIR was, therefore, admittedly registered after the preparation of seizure memo. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating officer only after a copy of the FIR was brought to the spot by HC Lalit. Thus, ordinarily, the FIR number should not find mention in the seizure memos, which came into existence before registration of the FIR. However, interestingly, the seizure memo Ex.PW-1/A bears the FIR number and case details in the same ink and the same handwriting in which the said documents are prepared. The same indicates that FIR number was mentioned on the said documents while preparing the same. Reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar Vs. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed :
"... 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. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
28. In paragraph 4 of Mohd. Hashim v. State, 1999 VI AD State Vs. Deepak FIR No. 131/19 PS Kamla Market 14/16 (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub- Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash FIR No. 02/2011 P.S.: Baba Haridass Nagar Page 15 of 18 Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
29. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex.PW-1/A. The same leads one to only one 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.
CONCLUSION:
30. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out. To summarize, the case against the accused is not watertight and the chance of false implication cannot be ruled out. It would be grossly unjust to convict the accused for possession of illicit liquor on the basis of evidence adduced during trial. The case of prosecution does not inspire confidence and the charge against State Vs. Deepak FIR No. 131/19 PS Kamla Market 15/16 the accused has not been proved beyond reasonable doubt. Accordingly, the accused Deepak S/o Sh. Rakesh is acquitted of the offence u/s 33 Delhi Excise Act, 2009.
Digitally signedAnnounced in open court by SAYESHA
SAYESHA CHADHA
CHADHA Date:
in the presence of accused. 2025.06.06
16:16:18 +0530
(SAYESHA CHADHA)
JUDICIAL MAGISTRATE FIRST
CLASS-08, Central District,
Tis Hazari Courts/Delhi
[This judgment contains 16 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Deepak FIR No. 131/19 PS Kamla Market 16/16