Delhi District Court
State vs Padam Kumar on 4 April, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
PADAM KUMAR
CASE No. 2109/2021
FIR No. 468/2020
P.S. - Khyala
U/S- 33/38 Delhi Excise Act,
2009
1. Date of commission of offence : 04.05.2020
2. Name of the Complainant : Ct. Sandeep
3. Name of the accused,
and his parentage and residence : Padam Kumar S/o Sh. Dharam
Chand, R/o H.No. C-271, JJ
Colony, Khyala, Delhi
4. Date when judgment : 06.03.2025
was reserved
5. Date when Judgment : 04.04.2025
was pronounced
6. Offence Complained of : Section 33/38 of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No. 468/2020 State Vs Padam Kumar 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 04.05.2020, at
about 09:00 PM in front of 830 Masjid near Hari Om Dhaba, Delhi within the jurisdiction of Police Station - Khyala, accused Padam Kumar was found in possession of one plastic sack, containing 102 quarter bottles of 'Impact Grain Whiskey for sale in Haryana only (180 ml)' 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 18.02.2021 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 21.12.2021. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 14.02.2022.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 27.05.2022 to which he pleaded not guilty and claimed trial. On 22.02.2023, proceedings u/s 294 CrPC were also conducted wherein the accused admitted copy of FIR No.0468/2020, certificate u/s 65 B of IEA, DD No.35 A dated 04.05.2020 and Excise Report dated 10.11.2020.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 04 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 2 S. Name of Documents Dates of Dates of No. Prosecution Exhibited in examination- cross-
witnesses Evidence. in-chief. examination
PW- HC Rajesh NIL 22.02.2023 22.02.2023
1 Kumar
PW- HC Sandeep (i) Seizure 22.02.2023 22.02.2023
2 Kumar memo -
Ex.PW2/A
(ii) Recording
of statement
of PW-2-
Ex.PW2/B
(iii) Site plan
- Ex.PW2/C
(iv) Arrest
memo -
Ex.PW2/D
(v) Personal
search memo
- Ex.PW2/E
(vi) case
property -
Ex.P1
PW- HC Jaipal (I) Disclosure 20.10.2023 20.10.2023
3 statement of
accused -
Ex.PW3/A
(ii) Case
property -
Ex.P2
(iii)
FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 3
Destruction
order
alongwith one
photograph
and copy of
register no.19
& 21 - Ex.P3
(colly)
PW- HC Mansukh (I) Form 23.12.2024 23.12.2024
4 Singh M-29 -
Ex.PW4/A
(ii) Tehrir -
Ex.PW4/B
(iii) Personal
search memo
- Ex.PW4/C
2.2 PW-1 was HC Rajesh Kumar who deposed that in the year, 2020, he
was posted at PS Khyala as HC and the investigation of the present case had already been completed by the IO HC Mansukh Singh. On handing over of the investigation of the present case, the case file was perused by him and investigation in all respect was already found completed. During the period within which the investigation of the present case remained with him, he had handed over the result of excise lab by MHC (M) and the same was placed on record by him. Afterwards, he filed the charge-sheet against the present accused. Opportunity to cross-examine the said witness was given but not availed.
FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 4 2.3 PW- 2 was HC Sandeep Kumar who deposed that on 04.05.2020, he was posted at PS Khyala as constable. On that day after about 07.00 or 07.30 pm, he left the PS for patrolling duty in beat area no.1 alongwith Ct. Jaipal and during the patrolling duty at about 09.00 pm when they reached in front of 823 Masjid near Hariom Dhaba, the present accused was found present there having in his possession one sack and on seeing PW-2 and Ct. Jaipal, he tried to move away from that place, however, he was nabbed and then asked about the sack but he did not respond. The sack was checked and was found containing illicit liquor bearing mark of 'Impact Grain Whisky for sale in Haryana only'. The information of recovery was given at police station and thereupon, HC Mansukh came to the spot. On his reaching the spot, PW-2 handed over to him the recovered case property with custody of the present accused. Then IO HC Mansukh had counted the quarter bottles which were 102 in numbers. Some passersby were requested by the IO to join the recovery proceedings but none agreed and left the spot without disclosing their names and addresses. Further, out of the recovered 102 quarter bottles as mentioned above, one quarter bottle was taken out as sample while the remaining 101 quarter bottles were put in the same sack which was moored with white cloth from its face and sealed with the seal of 'MS'. The quarter bottle taken out as sample was also moored from bottleneck with white cloth and sealed with the seal of 'MS'. Seal after use was handed over to PW-2 which was later on deposited with MHC (M) and at the spot Form M-29 was filled by the IO. The recovered liquor was taken into possession vide seizure memo. The quarter bottle was given serial no.1 while sample was given serial no.1A. Afterwards, IO recorded statement of PW-2 and thereupon IO FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 5 prepared rukka/ tehrir. The same was handed over to PW-2 for the registration of FIR and thereupon, he got the present case FIR registered. On returning to the spot, PW-2 handed over to the IO the copy of FIR and further IO prepared the site plan. Thereafter, the accused was arrested and personally searched vide memos. After completion of the aforementioned proceedings, the accused Padam Kumar was taken to the police station with case property where the case property was deposited by the IO with MHC (M) and the accused was put behind the bar after getting his medical examination. In this regard, statement of PW-2 u/s 161 CrPC was recorded by the IO. The witness was duly cross-examined.
2.4 PW-3 was HC Jaipal who deposed that on 04.05.2020, he was posted at PS Khyala as constable. On that day after about 07.00 or 07.30 pm, he left the PS for patrolling duty in beat area no.1 alongwith Ct. Sandeep and during the patrolling duty at about 09.00 pm when they reached in front of 823 Masjid near Hariom Dhaba, the accused namely Padam Kumar was found present there having in his possession one sack and on seeing police officials, he tried to move away from that place, however, he was nabbed and then asked about the sack but he did not respond. The sack was checked and it was found containing illicit liquor bearing mark of 'Impact Grain Whisky for sale in Haryana only'. The information of recovery was given at police station and thereupon, HC Mansukh came to the spot. On his reaching the spot, PW-3 handed over to him the recovered illicit liquor with custody of the accused and then IO HC Mansukh had counted the quarter bottles which were 102 in number. Some passersby were requested by the IO to join the recovery FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 6 proceedings but none agreed and left the spot without disclosing their names and addresses. Further, out of recovered 102 quarter bottles, one quarter bottle was taken out as sample while the remaining 101 quarter bottles were put in the same sack which was moored with white cloth from its face and sealed with the seal of 'MS'. The quarter bottle taken out as sample was also moored from bottleneck with white cloth and sealed with the seal of 'MS'. Seal after use was handed over to PW-3 which was later on deposited with MHC (M) and at the spot Form M-29 was filled by the IO. The recovered liquor was taken into possession vide seizure memo. The quarter bottle was given serial no.1 while sample was giving serial no.1A. Afterwards, IO recorded statement of Ct Sandeep and thereupon, IO prepared rukka/ tehrir. The same was handed over to Ct Sandeep for the registration of FIR and thereupon, Ct Sandeep got the present case FIR registered. On returning to the spot, Ct Sandeep handed over to the IO the copy of FIR. Thereafter, the accused was arrested and personally searched vide memos. The disclosure statement of accused was also recorded. After completion of the aforementioned proceedings, the accused Padam Kumar was taken to the police station with case property where the case property was deposited by the IO with MHC (M) and the accused was put behind bars after getting his medical examination. In this regard, statement of PW-3 was recorded by the IO u/s 161 CrPC. The said witness was duly cross-examined by the Ld. Defence Counsel.
2.5 PW-4 was HC Mansukh Singh who deposed that on 04.05.2020, he was posted at PS Khyala as Head constable. On that day, upon receiving DD No.35 from the DO, he went to the spot of incident at 823 Masjid, Bus Stand, FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 7 near Hari Om Dhaba, Khyala where he met Ct. Sandeep and Ct Jaipal who had handed over the custody of the accused Padam and the case property i.e. a plastic katta. Thereafter PW-4 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-4 checked the said katta and was found containing 102 quarter bottles of illicit liquor bearing mark of 'Impact Grain Whiskey for sale in Haryana only'. On being asked, the said accused revealed his name and other particulars. PW-4 recorded statement of Ct. Sandeep. Out of those quarter bottles, one quarter bottle was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'MS'. The rest of the quarter bottles were put in the same plastic katta moored with the white cloth and duly sealed with the seal of 'MS'. The said plastic katta was given serial no.1 and the sample quarter bottle was given serial no.1A. After sealing, the seal was handed over to Ct. Sandeep. Form M-29 was prepared by PW-4 and the abovesaid liquor as well as sample were seized vide seizure memo. Thereafter, PW-4 prepared the tehrir and the same was handed over to Ct. Sandeep 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 copy of FIR and original tehrir to PW-4. PW-4 prepared the site plan and recorded the disclosure statement of accused as narrated by him. Accused was arrested and personally searched. Then, PW-4 alongwith Ct. Sandeep and Ct. Jaipal took the accused to GGSGH for medical examination and then brought him along with case property to the police station and deposited the case property in the maalkhana and sent the accused to the lockup after FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 8 serving him food. PW-4 recorded the statement u/s 161 CrPC of all the witnesses. PW-4 produced accused in the court where he was sent to JC. PW-4 also sent the sample of the case property to the excise department and upon receiving its results, he prepared the chargesheet and submitted the same in the court. The witness was duly cross-examined by Ld. Counsel for the accused.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 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 separately on 12.02.2025 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 FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 9 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.
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 FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 10 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 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, it is 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. It is not the case of the prosecution that no public witnesses were available and it is stated by PW-2 as well as PW-3 in their respective examinations that the spot was a residential areas and there were people present however no formal notice was served on them.
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 FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 11 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 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 by such officer in order that his name or residence may be ascertained.
FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 12 (2) When the true name and residence of such persons have been ascertained, he shall be 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 months, or with fine which may extend to five FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 13 hundred rupees, or with both".
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 did not recall either which type of vehicle he was using on patrolling duty or how the IO had reached the spot. Moreover, while PW-2 stated that he had left for registration of FIR at 09.00 pm and returned at 10.00 pm, PW-3 claimed that he had left at 10.00 pm and come back at 11.00 pm. On the other hand, PW-4 claimed that he had reached the spot at 09.10 pm and had finally left by 11.00 pm. PW-2 stated that he had left at around 11.00 to 11.30 pm and PW-3 did not remember when he had left. These discrepancies regarding the time of arrival and departure were not resolved by the prosecution and in the absence of any corresponding DD entries, the same raise doubt. Additionally, PW-2 did not recall the mode coming back to the police station whereas PW-3 claim that it was on a FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 14 motorcycle and PW-4 stated that it was an e-rickshaw but did not give any explanation as to why this vehicle driver was not made a witness. These differences were also not resolved.
5.8 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. As per the evidence given by PW-2 & PW-3, both of them claimed that the seal after use was handed over to them whereas PW-4 stated that it was handed over to PW-2. The contradictory stance given by PW-3 was not explained by the prosecution. Moreover, PW-2 claimed that the seal was deposited with the MHC (M) but there was no documentation brought on record to show the same. In his cross-examination, PW-4 also admitted that the seal could not be seen in the photograph Ex.P3 produced in court for identification of the case property. However, admittedly, the seal was never handed over to any independent party and remained with the official of the same police station. Tampering with the case property as well as the seal cannot be ruled out in such a case as the same remained with officials of the same police station as the IO himself. 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.
5.9 Most importantly, the very existence of violation of the excise policy has been brought into question as only one quarter bottle among those seized FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 15 was sent for chemical analysis and found to contain alcohol. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been proved by the prosecution. As admitted by the prosecution witnesses, neither was the batch number of the remaining bottles noted to correlate them with the sample bottle. Now, since the State has only found one bottle containing 180 ml alcohol, allegedly recovered from the accused, an offence under Section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out, as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. No batch number of the remaining bottles corresponding to the sample were noted to indicate similarity of contents, as admitted by PW-3 & PW-4 in their respective cross- examinations.
5.10 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 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 Padam Kumar S/o Sh.
FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 16 Dharam Chand, R/o H.No. C-271, JJ Colony, Khyala, Delhi is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance ANNOUNCED IN THE OPEN SUKRITI Digitally signed by SUKRITI SINGH COURT ON 04.04.2025 SINGH Date: 2025.04.09 17:15:59 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 17 pages, all signed by the presiding officer SUKRITI Digitally signed by SUKRITI SINGH SINGH Date: 2025.04.09 17:15:55 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 468/2020 State Vs Padam Kumar U/s 33/38 Delhi Excise Act 17