Delhi District Court
State vs Durga Parshad Verma on 24 April, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
DURGA PARSHAD VERMA ETC
CASE No. 2751/2018
FIR No. 399/2017
P.S. - Moti Nagar
U/S- 33/52(2) Delhi Excise
Act, 2009
1. Date of commission of offence : 03.11.2017
2. Name of the Complainant : Ct. Sunil Kumar
3. Name of the accused,
and his parentage and residence : Durga Parshad Verma S/o
Raminder Verma R/o
H.No.B-1 T Huts, Rama Road,
Moti Nagar, Delhi & Dayal
Kumar S/o Dharam Chand,
R/o H.No.W-72/49,
Talliwallan Dera WR Block,
Anand Parbat, Delhi
4. Date when judgment : 20.03.2025
was reserved
5. Date when Judgment : 24.04.2025
was pronounced
6. Offence Complained of : Section 33/52(2) of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 03.11.2017, at
about 12:10 PM near Jhuggi No.B-58, Rama Road within the jurisdiction of PS
- Moti Nagar, 36 cardboard boxes of llicit liquor were found in the vehicle bearing registration no. DL1LX7214 without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. The vehicle in question was found registered in the name of accused Durga Parsad Verma. Further, two cardboard boxes of llicit liquor were found on the vehicle bearing registration no. DL11SQ6811 without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. The vehicle in question was found registered in the name of accused Dayal Kumar. 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 23.04.2018 indicting the accused Durga Parsad Verma and Dayal Kumar for commission of the offence U/s 33/52(2) of Delhi Excise Act, 2009. Ld. Predecessor took cognizance on 15.05.2018 and issued summons on the same day. Copy of the chargesheet in compliance with Section 207 CrPC was supplied to both accused persons on 02.07.2019.
1.3. Charge for the offence U/s 33/52(2) of Delhi Excise Act, 2009 was framed separately against the accused persons on 02.07.2019 to which they pleaded not guilty and claimed trial.
FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 2
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 06 witnesses in total. Separate statement of the accused persons u/s 294 CrPC was also recorded on 06.03.2025 and excise report dated 29.11.2017 was exhibited. The details of the witnesses examined alongwith documents exhibited thereby are given as under:
S. No. Name of Documents Dates of Dates of
Prosecution Exhibited in examination- cross-
witnesses Evidence. in-chief examinatio
n
PW-1 Ct. Amit (i) Site plan - 11.09.2019 11.09.2019
Kumar Ex.PW1/A
(ii) Seizure
memo -
Ex.PW1/B &
PW1/C
(iii) Case
property - Ex.P1
& Ex.P2
(iv) DD No.35 B
alongwith
confiscation and
destruction order
and certificate -
Ex. P3 (colly)
(v) Photographs
with certificate
and CD
- Ex. P4 (colly)
PW-2 Ct. Sunil (i) Statement of 23.06.2023 23.06.2023
Lathar PW-2 -
Ex.PW2/A
FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 3
(ii) Place of occurrence memo -
Ex.PW2/B
(iii) Personal search memo of accused Dayal Kumar -
Ex.PW2/C
(iv) Arrest memo of accused Dayal Kumar -
Ex.PW2/D
(v) Disclosure statement of accused Dayal Kumar -
Ex.PW2/E
(vi) Photographs of offending vehicles - Ex.P5 (colly) PW-3 HC Lalit (i) Copy of entry 04.10.2023 04.10.202 Kumar in register 3 alongwith copy of RC - Ex.A1 (colly) PW-4 SI Rajesh NIL 30.01.2024 30.01.2024 Kumar PW-5 ASI Anil (i) Rukka - 20.04.2024 20.04.2024 Kumar Ex.PW5/A
(ii) place of occurrence FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 4 memo of accused Durga Parsad -
Ex.PW5/B
(iii) Arrest memo of accused Durga Parsad -
Ex.PW5/C
(iv) Personal search memo -
Ex.PW5/D
(v) Disclosure statement of accused Durga Parsad -
Ex.PW5/E
(vi) Excise control laboratory result dated 03.11.2017
- Ex.PW5/E PW-6 W/ASI (I) Endorsement 19.02.2025 19.02.2025 Anita of rukka -
Ex.PW6/A 2.2 PW-1 i.e. Ct. Amit Kumar stated that on 03.11.2017 he was posted as Constable at Excise Department, Delhi. On that day, one secret information was received regarding transportation of liquor by a person without license and permit in a vehicle i.e. Tempo bearing no. DL-1LX-7214 and one scooty DL-11SQ-1287 at Rama Road, Moti Nagar, Delhi. On this information, they reached at the aforesaid place where Ct. Sunil from PS Moti Nagar came there to whom, firstly PW-1 apprised FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 5 alongwith HC Rajesh about their particulars. PW-1 was also informed about the secret information and in response, Ct. Sunil apprised that he had also the received the information regarding transportation of illicit liquor. Ct. Sunil was informed about the above-mentioned vehicles as the said facts were apprised to them by the secret informer. After this, all the staff members as mentioned above reached in front of B-58, Rama Road, Moti Nagar where on the opposite side of said address the above- mentioned vehicles were stationed and on reaching there, the said vehicles were checked. The tempo was covered with a large poly cover and the said scooty was found with two sacks. The owners of said vehicle were traced but there was no clue and afterwards, the information regarding the recovery was forwarded to the concerned duty officer of PS Moti Nagar. On this information, HC Anil came to the spot. HC Anil, initially, checked the sacks as well as cartons which were kept in the tempo. HC Anil requested 4-5 passersby to join the recovery proceedings but none of them agreed and left the spot without disclosing their names and addresses. In continuation of proceedings, the sacks which were found on the scooty were placed on road and checked which were found containing two cartons (one from each) which were opened and found containing 48 quarter bottles in each bearing mark of 'Crazy Romeo Whiskey for sale in Arunachal Pardesh only'. Two quarter bottles from each carton were taken out as sample while the remaining were placed in their respective cartons which were again placed in the respective sacks. The said quarter bottles were sealed by HC Anil by affixing his seal 'AK'. The said sample quarter bottles were given serial no.EX1 and EX2. The sacks containing the remaining quarter bottles in the respective cartons were given serial no.S1 and S2 after affixing the seal of 'AK'. After completion of aforesaid proceedings, the aforementioned tempo which was covered with a large poly bag was checked and it was found containing 36 cartons containing illicit liquor. The said cartons were taken out from the said tempo, checked FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 6 and out of 36 cartons, 30 cartons were found containing 48 quarter bottles each bearing mark of 'Crazy Romeo Whiskey for sale in Arunachal Pardesh only' while the remaining six cartons were found containing quarter bottles of 'Officers Choice Blue for sale in Haryana only'. From the liquor recovered /taken out from 30 cartons one quarter bottle from each was taken out as sample while the remaining were placed in the respective cartons. The said 30 sample quarter bottles were placed in a white sack which was moored with a white cloth and sealed with the seal of 'AK'. The same was given serial no.Ex.3. The cartons were given serial no.S3 to S32 and each carton was sealed with the seal of 'AK'. In continuation of the same proceedings, out of six cartons as mentioned above, one quarter bottle from each carton was taken out as sample while remaining were placed in the respective cartons. The quarter bottles which were taken out as sample were sealed with the seal of 'AK' and in the same manner the cartons which were placed in the sack were sealed with the seal of 'AK'. The said six samples were placed in a white sack and sealed with the seal of 'AK' and the same was given serial no.EX4 while the cartons were given serial no.33 to 38. Form M-29 was also filled by the IO at the spot. Seal after use was handed over to Ct. Sunil and his statement was recorded by the IO whereupon, he prepared rukka/tehrir and sent it through Ct. Sunil for the registration of FIR. Thereafter, IO prepared site plan and took into possession the seizure memo of recovered liquor in the manner as recovered from the tempo and the scooty. Statement of PW-1 was recorded by the IO and thereafter, PW-1 was made free by him from the further proceedings. Witness was duly cross-examined by Ld. Counsel for the accused.
2.3 PW-2 i.e. Ct. Sunil Lathar stated that on 03.11.2017, he was posted as constable at PS Moti Nagar and was on beat patrolling duty at beat no.2. On that day at around 11.50 am, HC Rajesh alongwith Ct. Amit from Excise Department reached FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 7 there and informed him about secret information regarding transportation of liquors by person without licence and permit in a vehicle tempo Bearing no. DL 1LX7214 and one scooty make TVS Jupiter bearing registration no.DL11SQ-1287 at Rama Road, Moti Nagar, Delhi. They requested PW-2 to join the raiding party. Thereafter, PW-2 joined the raiding party and they started searching for the abovesaid vehicles. PW-2 was also having the same secret information. During the search, when they reached at B-58 Gol chakkar and were going towards Rama Road Zakhira, there they found the abovesaid vehicles at a distance of about 200-250 meters. No person was standing at that time alongwith the vehicles. They reached there and found that on the abovesaid scooty, two plastic sacks were there. They tried to search the drivers of the abovesaid vehilcles but no one came. Thereafter, they checked the sacks on the abovesaid scooty and it was found containing one carton box of illicit liquor in one sack. Thereafter, the abovesaid tempo was checked and it was found containing carton boxes of liquor. Thereafter, PW-2 transmitted the abovesaid information to the PS Moti Nagar on the basis of the same HC Anil came to the spot and recorded statement of PW-2. HC Anil also checked the abovesaid scooty and tempo. 4-5 public persons were requested to join the proceedings but none of them agreed and went away by stating their reasonable excuses. Due to paucity of time, no notice was served upon them by HC Anil. The sacks which were found on the scooty were placed on road and checked which were found containing two cartons (one from each) which were opened and found containing 48 quarter bottles in each bearing mark of 'Crazy Romeo Whisky for sale in Arunachal Pradesh only'. Two quarter bottles from each carton were taken out as sample while the remaining were placed in their respective cartons which were again placed in the respective sacks. The said quarter bottles were given serial no.Ex1 and Ex.2. The sacks containing the remaining quarter bottles in the respective cartons were given serial no.S1 and S2. After completion of aforesaid FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 8 proceedings, the aforementioned tempo which was covered with a large poly bag was found containing 36 cartons containing the illicit liquor. The said cartons were taken out from the said tempo which were checked and out of 36 cartons, 30 cartons were found containing 48 quarter bottles each bearing mark of 'Crazy Romeo Whisky for sale in Arunachal Pradesh only' while the remaining six cartons were found containing quarter bottles of 'Officers Choice Blue for sale in Haryana only'. From the liquor recovered / taken out from 30 cartons, one quarter bottle from each was taken out as sample while the remaining were placed in the respective cartons. The said 30 samples quarter bottles were placed in a white sack which was moored with a white cloth and sealed with the seal of 'AK'. The same was given serial no.Ex 3. the cartons were given serial no. S3 to S32 and each carton was sealed with the seal of 'AK'. Out of six cartons as mentioned above, one quarter bottle from each was taken out as sample while remaining were placed in the respective cartons. The quarter bottles which were taken out as sample were sealed with the seal of 'AK' and in the same manner, the cartons which were placed in the sack were sealed with the seal of 'AK'. The said six samples were placed in a white sack and sealed with the seal of 'AK' and the same were given serial no.Ex.4, while the cartons were given serial no.33 to 38. Form M-29 was also filled by the IO at the spot. Seal after use was handed over to PW-2 and statement of PW-2 was recorded by the IO. On the basis of statement of PW-2, rukka was prepared and the same was handed over to him for registration of FIR. PW-2 went to the police station and got the FIR registered. After registration of FIR, PW-2 returned to the spot alongwith original rukka and copy of FIR and the same were handed over to HC Anil. HC Anil prepared the site plan. IO prepared the seizure memo with regard to aforementioned liquor alongwith abovementioned tempo. IO also prepared the seizure memo of the abovementioned scooty alongwith recovered liquor. IO also prepared the place of occurrence memo.
FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 9 They checked about the registered owner of the abovementioned scooty and it was found in the name of Dayal Kumar and on the basis of the same, on 31.01.2018, he was personally searched and arrested by HC Anil vide memos in the presence of PW-2. The disclosure statement of the accused Dayal Kumar was also recorded by HC Anil. Witness was duly cross-examined by Ld. Counsel for the accused.
2.4 PW-3 i.e. HC Lalit Kumar stated that on 03.11.2017, he was posted as MHC (M) at PS Moti Nagar. On that day, HC Anil deposited sample quarter bottles pertaining to the present case in the malkhana duly sealed with the seal of 'AK' and he received the same by making entry in the register no.19, Mad No.3492 dated 03.11.2017. Thereafter, on 13.11.2017, the abovesaid quarter sample quarter bottles were deposited in the Excise Lab by HC Anil by obtaining from him vide RC No.107/21/17 dated 13.11.2017. Till the sample remained in PW-3's possession, no tampering or alteration was done by him. Witness was duly cross-examined by Ld. Counsel for the accused.
2.5 PW-4 i.e. SI Rajesh Kumar stated that on 03.11.2017 he was posted at Delhi Excise Department as HC. On that day he had an information regarding a tempo bearing registration no.DL1L-7214 make of white colour Mahendra Duro containing illicit liquor parked near B-52 Rama Road Jhuggis and it would supply 2-2 cartons via scooty bearing registration No.DL11S--6287. Thereafter, PW-4 went to the said place alongwith Ct. Amit where they met Ct. Sunil of local police. Thereafter, PW-4 informed him about information received by him. He further stated that he too had the same information. Thereafter, PW-4 alongwith Ct. Sunil and Ct. Amit prepared a raiding party. PW-4 asked few passersby to join the investigation but none of them agreed and left the spot stating their personal difficulties without disclosing their FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 10 names and other particulars. Thereafter they searched on foot for abovementioned scooty and tempo and found it in front of B-52 Jhuggis Rama Road. Upon reaching there they found two kattas kept on foot mat of the scooty. Thereafter, they inquired about the owner/ driver of the scooty and tempo but could not find them. Thereafter, Ct. Sunil cursorily searched the said kattas and found one carton of illicit liquor each of make 'Crazy Romeo Whisky for sale in Arunachal Pradesh only' each containing 48 quarter bottles of abovesaid liquor. Then Ct. Sunil checked the tempo and found illicit liquor inside too. Then Ct. Sunil informed about the same in the police station and then IO/HC Anil reached the spot. IO asked few passersby to join the investigation but none of them agreed and left the spot stating their personal difficulties without disclosing their names and other particulars. IO searched for driver/owner of the above mentioned scooty and tempo but could not find them. Thereafter, IO checked the said katta and one quarter bottle from each carton was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'AK'. 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 'AK'. The said cartons were given serial no.S1 and S2 and the sample quarter bottles were given serial no.Ex.1 and Ex.2. Then IO took out the liquor kept in the tempo and found 36 cartons of illicit liquor. Out of them 30 cartons were of 'Crazy Romeo Whisky for sale in Arunachal Pradesh only' and 06 were of 'Officers Choice for sale in Haryana only'. Then one quarter bottle from each carton of 'Crazy Romeo' was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'AK' and were put in a plastic katta moored with the white cloth and duly sealed with the seal of 'AK' and given serial no Ex3. The said cartons were given serial no.S3 to S32. Out of six cartons of 'Officers Choice', one quarter bottle each was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 11 of 'AK' and were put in a plastic katta moored with the white cloth and duly sealed with the seal of 'AK' and given serial no. Ex.4. The said cartons were given serial no.S33 to S38. After sealing, the seal was handed over to Ct. Sunil. Form M-29 was prepared by the IO and the abovesaid liquor found inside tempo along with the tempo as well as sample were seized vide seizure memo and the liquor found inside scooty alongwith the scooty as well as sample were seized vide seizure memo. Thereafter, IO prepared the tehrir and the same was handed over to Ct. Sunil for registration of FIR. Ct. Sunil went to the police station and got the FIR registered. Thereafter IO recorded statement of PW-4 U/s 161 CrPC and he was discharged from the case. Witness was duly cross-examined by Ld. Counsel for the accused.
2.6 PW-5 i.e. ASI Anil Kumar who stated that on 03.11.2017, he was posted as HC at PS Moti Nagar. On that day his duty hours were from 09.00 AM to 09.00 PM. On that day on getting information of regarding illicit liquor from DO, he went to the spot and where he found Ct. Sunil and two officers from excise department namely HC Rajesh and Ct Amil as well as one Mahindra Tempo and one Scooty was found. On the scooty, two petties containing illicit liquor and in Mahindra Tempo 36 petties containing illicit liquor was found. Upon checking said 36 petties, 30 petties were found containing illicit liquor of 'Crazy Romeo' and in remaining 6 petties illicit liquor of 'Officers Choice Blue' was found. 4-5 passersby were asked to join the investigation however all left citing their personal reasons and due to paucity of time no written notice could be served neither their names could be recorded. Two bottles were taken as sample from the petties recovered from the Scooty and were given sample number Ex.1 and Ex.2 and the remaining bottles were kept back in petties and said two petties were kept in white plastic sack and same was moored with white cloth and thereby sealed with the seal of 'AK'. The petties recovered from Scooty were FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 12 given serial no 1 and 2. Out of 36 petties recovered from Mahindra Tempo, 30 petties were found containing 48 bottles each bearing Mark of 'Crazy Romeo for sale in Arunachal Pradesh' and in remaining 06 petties illicit liquor of 'Officer Choice for sale in Haryana only'. From the liquor recovered from 30 petties, one bottle each was taken out as sample while remaining were placed in the respective petties. The said 30 samples quarter bottles were placed in a white sack which was moored with a white cloth and sealed with the seal of 'AK'. The same was given serial no.Ex 3. the cartons were given serial no.S3 to S32 and each carton was sealed with the seal of AK. In continuation of the same proceedings, out of six cartons as mentioned above, one quarter bottle from each was taken out as sample while remaining were placed in the respective carton/pettie. The bottles which were taken out as sample were sealed with the seal of 'AK' and in the same manner, the cartons/pettie which were placed in the sack were sealed with the seal of 'AK'. The said six samples were placed in a white sack and sealed with the seal of 'AK' and the same were given serial no.Ex.4, while the cartons were given serial no.33 to 38. Form M-29 was also filled by the PW-5 at the spot. Seal after use was handed over to Ct. Sunil and at that time, statement of Ct. Sunil was recorded by PW-5. On the basis of statement of Ct. Sunil, rukka was prepared and the same was handed over to Ct. Sunil for registration of FIR. Ct. Sunil went to the police station and got the FIR registered. After registration of FIR, Ct. Sunil returned to the spot alongwith original rukka and copy of FIR and the same were handed over to PW-5. PW-5 prepared the site plan and prepared the seizure memo with regard to aforementioned liquor alongwith above mentioned tempo. PW-5 also prepared the seizure memo of the above mentioned scooty alongwith recovered liquor. PW-5 also prepared the place of occurrence memo of accused Durga Parsad. PW-5 checked about the registered owner of the above mentioned scooty and it was found in the name of Dayal Kumar and on the basis of the same, on 31.01.2018 he FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 13 was personally searched and arrested by PW-5 and accused Durga Parsad was arrested vide arrest memo. Accused Dayal Kumar was personally searched vide personal search memo and disclosure statement of the accused Dayal Kumar was also recorded by PW-5 vide disclosure memo. During investigation, accused Durga Parsad was arrested vide arrest memo and personally search vide personal search memo. PW-5 also recorded the disclosure of accused Durga Parsad vide memo and received the excise control laboratory result dated 03.11.2017. PW-5 recorded the statement of witness u/s 161 CrPC and completed the investigation, prepared the chargesheet and filed the same before the court. Witness was duly cross-examined by Ld. Counsel for the accused.
2.7 PW-6 i.e. W/ASI Anita who stated that on 03.11.2017, she was posted as ASI/DO at PS Moti Nagar and her duty hours were from 08.00 AM to 04.00 PM. On that day, at about 03. 30 PM, Ct. Sunil came to police station alongwith rukka sent by IC Anil for registration of FIR. PW-6 perused the same and registered the present FIR whose copy was already on record. PW-6 put her endorsement on rukka and handed over the copy of FIR and rukka to Ct. Sunil to hand over the same to IO HC Anil. Opportunity for cross-examination was given but not availed.
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 persons Dayal Kumar and Durga Parsad Verma in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statements of accused persons were recorded separately on 06.03.2025 wherein they denied the allegations and tendered explanation that they had been falsely implicated. They opted not to lead any DE in their defence.
FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 14
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused Dayal Kumar was the registered owner of the scooty and accused Durga Parsad Verma was the registered owner of the tempo in which illicit liquor were recovered. On the other hand, Ld. Counsel for the accused persons argued that the scooty of accused Dayal Kumar was lifted from in front of his house and the tempo of the accused Durga Parsad Verma was also wrongfully planted and could not be seen in any of the photographs. He further argued that no CCTV footage had been furnished to show that the scooty and tempo had been recovered from the alleged spot. He submitted that the accused persons are entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused persons have been charged with the offence U/s 33/52(2) of 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 and recovery of liquor from the abovestated vehicle.
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 FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 15 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 52 (2) of Delhi Excise Act, 2009 states that:
Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of the commission of such an offence.
5.4 This court now proceeds to analyse the evidence adduced in the present case.
The words 'for the possession of which he is unable to account satisfactorily' used in Section 52(1) of the Delhi Excise Act indicates that as a pre-requisite for the presumption under Section 52 to be raised against the accused, it is imperative for the prosecution to successfully established the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession that the accused can be called upon to account for the same. However, in the present matter, the case of the prosecution is fraught with multiple inconsistencies rendering the prosecution version without credit. Hence, presumption under Section 52 cannot be raised against the accused persons.
5.5 Firstly, it is noted that all the recovery witnesses have admitted that no public witnesses were joined in the present enquiry, despite the recovery taking FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 16 place in a public residential area and in the absence of the accused persons. Regarding the non-joining of public witnesses, it is important to revisit the provisions as follows:
5.6 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"....
5.7 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".
5.8 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 FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 17 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.
(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".
5.9 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 hundred rupees, or with both".
FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 18
5. 10 As noted above, it is not the case of the prosecution, in the course of arguments, that no public witnesses were available. All the recovery witnesses have stated that public persons had been asked to join the investigation but none joined. Moreover, if such witnesses were present, IO has failed to explain as to why their names and residence details were not recorded, or why was any notice not issued to them, as per the aforesaid discussed provisions. 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. In the very least, he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice u/s 187 IPC should be given to him. Merely stating that the public person 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 failed to take any required steps in terms of Section 37 and 42 of Cr.P.C.
5.11 In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses".
5.12 In the present case such sincere efforts have not been shown and there is a vital omission on part of the prosecution to include important eye witnesses from the admittedly populated area. This court is conscious of the legal possession that non- joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case. However, evidence in such a case is seen in the light of other facts FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 19 and circumstances and as discussed hereinafter, the testimonies given are not compelling and evidence of independent witness would have rendered much needed corroborative value to the otherwise uncompelling case of the prosecution.
5.13 There are further discrepancies inter se among the testimonies given by the prosecution witness examined. For instance, PW-1 did not recall many material particulars such as the time at which Ct. Sunil left for registration of FIR, or when PW-1 himself left the spot or even when particulars of the FIR were filled on the documents prepared before the registration of the FIR. Further, PW-2, in the course of his cross-examination stated that he did not remember how the scooty seized was taken to the police station, then corrected himself to say that the scooty was taken in an E-rickshaw and the tempo was taken by a crane. However, he did not remember who had gone in the rickshaw alongwith the scooty. In contradiction, PW-5 stated that PW-2 had taken the scooty to the police station on foot while he did not remember how the tempo was taken. PW-2 also did not recall the particulars of his own bike with which he had gone to the spot. The witnesses have also given different versions regarding the time at which the tehrir was taken to the police station as PW-4 stated that it was taken at around 03.30 pm and PW-4 stated that 03.30 pm was the time when he returned with the registered FIR. None of the witnesses stated anything regarding how the accused persons were traced in the present matter or how enquiries from the transport department were made.
5.14 There is also a possibility of misuse of seal of the investigating officers. All the witnesses have stated that the seal was handed over to PW-2 by the IO but it was admitted that there was no handing over memo prepared. As such, PW-2 was also a recovery witness and the part of the investigation in the present matter. It is also FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 20 conceded that the seal was not handed over to any independent witnesses, and remained with the police officials of the same police station. There is no mention of when PW-2 had handed over the seal back, or to whom. Thus, the possibility of the case property being tampered with is extremely strong, and cannot be ignored and therefore manipulation of the said sample or seized property can not be ruled out. Reliance in this regard is placed upon the judgment in Ramji Singh Vs. State of Haryana (P&H) 2007 R.C.R (Criminal) 452.
5. 15 The pre-requisite to hold any person guilty under Section 52 (2) of the Excise Act is that the accused must be the owner of the vehicle which has been used in the commission of the offence under Delhi Excise Act. However, in the present case sufficient doubt has been created over the alleged recovery of the liquor from the spot and vehicle in question. Witnesses have already admitted that no videography or photography of the vehicles was done at the spot. As noted above, defence has also suggested the possibility that the vehicles were lifted and the illicit alcohol was implanted afterwards therein to implicate the accused persons. The aforementioned lacunae in the story of the prosecution render its version doubtful and the burden of proving the guilt of the accused persons beyond reasonable doubt has not been discharged by the prosecution.
5.16 In view of the aforesaid discussion, the recovery as alleged by the prosecution i.e. illicit liquor from the vehicle of the accused persons namely Dayal Kumar and Durga Parsad Verma cannot be stated to have been proved beyond reasonable doubt. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubts. It is a settled FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 21 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. Under the circumstances, it would not be proper to convict the accused persons Durga Parsad Verma and Dayal Kumar merely on the basis of inconsistent testimonies of the police officials. Hence, accused persons namely Durga Parshad Verma S/o Raminder Verma R/o H.No. B-1 T Huts, Rama Road, Moti Nagar, Delhi & Dayal Kumar S/o Dharam Chand, R/o H.No.W-72/49, Talliwallan Dera WR Block, Anand Parbat, Delhi, are acquitted of the offences punishable u/s 33/52 (2) of the Delhi Excise Act, 2009, on the basis of benefit of doubt.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN
SUKRITI Digitally signed by
SUKRITI SINGH
COURT ON 24.04.2025 SINGH Date: 2025.04.30
17:56:04 +0530
(SUKRITI SINGH)
JUDICIAL MAGISTRATE
FIRST CLASS-04/WEST/
TIS HAZARI COURTS/DELHI
Containing 22 pages, all signed by the presiding officer SUKRITI Digitally signed by SUKRITI SINGH SINGH Date: 2025.04.30 17:56:07 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 399/2017 State Vs Durga Parshad Verma etc U/s 33/52(2) Delhi Excise Act 22