Delhi District Court
State vs Anil on 26 May, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
Anil
CASE No. 225/2020
FIR No. 127/2019
P.S. - Khyala
U/S- 33/38 Delhi Excise
Act, 2009
1.Date of commission of offence : 16.04.2019
2. Name of the Complainant : Ct Roop Singh
3. Name of the accused, and his parentage and residence : Anil S/o Amar Singh, R/o H. no.
D-90, JJ Colony, Khyala, Delhi.
4. Date when judgment : 23.04.2025 was reserved
5. Date when Judgment : 26.05.2025 was pronounced
6. Offence Complained of : Section 33/38 of or proved Delhi Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted FIR No. 127/2019 State Vs Anil 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 16.04.2019, at about 9:00 pm at D-90, First Floor, JJ Colony, Khyala, Delhi within the jurisdiction of Police Station Khyala, accused Anil was found in possession of five plastic sacks each containing 48 quarter bottles of Besto whiskey for sale in Haryana only without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 10.01.2020 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance on the same day. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 17.10.2020.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 24.02.2022 by the Ld. Predecessor to which accused pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 06 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examination- cross-
witnesses Evidence. in-chief. examination
FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 2
PW- HC Sandeep Nil 23.12.2023 23.12.2023
1 Kumar
PW- HC Roop (i) Seizure 23.12.2023 23.12.2023
2 Singh memo -
Ex.PW2/A
(ii) Arrest
memo -
Ex.PW2/B
(iii) Personal
Search memo
- Ex.PW2/C
(iv) Case
property -
Ex.P1 and
Ex.P2
PW- ASI Naresh Road 12.04.2024 12.04.2024
3 Certificate-
Ex.PW3/A
PW- HC Sagar (i) Site plan - 12.04.2024 12.04.2024
4 Ex.PW4/A
PW- Retired SI (i) Tehrir- 10.03.2.2025 10.03.2025
5 Balwant Singh Ex.PW5/A
PW- ASI Hari Singh Nil. 10.03.2025 10.03.2025
6
2.2 PW-1 HC Sandeep deposed that on 22.07.2019, he was
posted as constable at PS Khyala and was on duty and on that day, he took the case property in the present case from the MHC (M) vide RC No. 121/21/19 i.e. one quarter bottle of Besto Whisky for sale in Haryana only 180 ml, duly sealed with the seal of BS and the same was deposited in the Excise Office at ITO. Till the case property remained in his possession, no FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 3 tampering was done. Opportunity for cross-examination was given but not availed.
2.3 PW-2 HC Roop Singh deposed that on 16.04.2019, he was posted at PS Khyala as constable and on that day, he alongwith Ct. Sagar were on patrolling duty in the area and at around 09.00 pm, when they reached at D-90 JJ colony Khyala Delhi they went to first floor of the said house where five plastic sacks were kept, which were smelling of alcohol. Upon interrogation, accused told them that the said sacks contain household items. Upon checking the said sacks, they found illicit liquor inside them. Thereafter, accused tried to flee the spot but PW-2 alongwith Ct. Sagar apprehended accused. Then PW-2 informed the DO in the PS regarding the situation and IO ASI Balwant Singh reached the spot. PW-2 handed over the accused and five sacks with illicit liquor inside them to him. IO 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 by IO to them. Thereafter, IO checked the said katta and it was found to contain 5 cartons of 48 quarter bottles each of 180 ml bearing the label of Besto Whisky for sale in Haryana only. Out of those quarter bottles, 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 BS and given serial no. S1-S5. The rest of the quarter bottles were put in the same plastic sacks, moored with the white cloth and duly sealed with the seal of BS and given serial no. A1-A5. After sealing, the seal was handed over to Ct Sagar. Form M-29 was prepared by the IO and the FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 4 abovesaid liquor as well as sample were seized vide seizure memo Ex. PW2/A. Thereafter, IO prepared the tehrir and the same was handed over to PW-2 for registration of FIR. PW-2 went to the PS and got the FIR registered. After registration of FIR, PW-2 returned back at the spot and handed over the copy of FIR and original tehrir to IO at the spot. IO prepared the site plan. IO arrested the accused vide arrest memo Ex. PW2/B and personally searched accused vide personal search memo Ex. PW2/C . The witness was duly cross-examined by the defence.
2.4 PW-3 ASI Naresh deposed that on 14.05.2019, he was posted at PS Khyala and the investigation in the present case was marked to him and he perused the case file. On 22.07.2019 he sent the seized samples of illicit liquor to Excise Control Laboratory and the same was taken by Ct. Sandeep who took the possession of the said samples through MHC(M) concerned and the road certificate of the sample is Ex.PW3/A. PW-3 recorded statement u/s 161 CrPc of MHC(M).Opportunity for cross- examination was given but not availed.
2.5 PW-4 HC Sagar who deposed that on 16.04.2019, he was posted at PS Khyala as constable and on that day, he alongwith Ct. Roop Singh were on patrolling duty in the area and around 09.00 pm, when they reached at D-90 JJ colony Khyala Delhi, which is the house of BC of the area namely Anil, they went to the first floor of the said house where five plastic sacks were kept, which were smelling of alcohol. Upon interrogation, accused told them that the said sacks contain household items. Upon checking the said sacks they found illicit liquor inside FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 5 them. Thereafter, accused tried to flee the spot but PW-4 alongwith Ct. Roop Singh apprehended him. Then the information qua the same had been given to the DO in the PS. Then IO ASI Balwant Singh reached the spot. PW-4 and Ct. Roop Singh handed over the accused and five sacks with illicit liquor inside them to him. IO 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 by IO to them. Thereafter, IO checked the said katta and it was found to contain 5 cartons of 48 quarter bottles 180 ml each bearing the label of Besto Whisky for sale in Haryana only. Out of those quarter bottles, 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 BS and given serial no. S1-S5. The rest of the quarter bottles were put in the same plastic sacks moored with the white cloth and duly sealed with the seal of BS and given serial no. A1-A5. After sealing, the seal was handed over to PW-4. Form M-29 was prepared by the IO and the abovesaid liquor as well as sample were seized vide seizure memo Ex. PW2/A. Thereafter, IO prepared the tehrir and the same was handed over to Ct. Roop Singh for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR, he returned to the spot and handed over the copy of FIR and original tehrir to IO at the spot. IO prepared the site plan vide Ex.PW4/A. IO arrested the accused vide arrest memo already Ex. PW2/B and personally searched him vide personal search memo vide Ex. PW2/C. This witness was duly cross-examined by Ld. Defence Counsel.
FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 6 2.6 PW-5 was Retired SI Balwant Singh who deposed that on 16.04.2019, he was posted as ASI at PS Khyala. On that day, upon receiving DD no. 64, PW-5 went to the spot of recovery at D-90, First Floor, JJ Colony, Khyala, Delhi and met Ct Sagar and Ct Roop Singh who handed over the custody of accused and five sacks with illicit liquor to PW-5. PW-5 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 by PW-5 to them. Thereafter, PW-5 checked the said katta and it was found to contain 5 cartons of 48 quarter bottles 180 ml each bearing the label of Besto Whisky for sale in Haryana only. Out of those quarter bottles, 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 BS and given serial no. S1-S5. The rest of the quarter bottles were put in the same plastic sacks moored with the white cloth and duly sealed with the seal of BS and given serial no. A1-A5. After sealing, the seal was handed over to Ct Sagar. Form M-29 was prepared by PW-5 and the abovesaid liquor as well as sample were seized vide seizure memo. Thereafter, PW-5 prepared the tehrir and the same was handed over to Ct. Roop Singh for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR, he returned to the spot and handed over the copy of FIR and original tehrir to PW-5 at the spot. PW-5 prepared the site plan vide Ex.PW4/A. PW-5 arrested the accused vide arrest memo already Ex. PW2/B and personally searched him vide personal search memo vide Ex. PW2/C. Accused alongwith the case property was taken to police station. The case property was deposited in malkhana. Accused was FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 7 medically examined in the hospital and thereafter he was kept in lockup. On next day, accused was produced before the court and was sent to JC by order by this court. Thereafter PW-5 was transferred and case was handed over to second IO. The witness was duly cross-examined by the defence.
2.7 PW6 was ASI Hari Singh who deposed that on 10.11.2019, he was posted at PS Khyala as HC. On that day, the present case was marked to him for further investigation. On 18.11.2019, PW6 obtained the Excise Result of the samples in the present case and placed on record. On 30.11.2019, PW6 filed the charge-sheet in the Court. The witness was duly cross- examined by the defence.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 The prosecution evidence was closed upon submissions on behalf of the State on 10.03.2025. After the prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded separately on 01.04.2025 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' FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 8 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. He also argued that no seal handing over memo had been prepared and the sanctity of the seal was not beyond question. He submitted that no videography, photography, examination of any public witness was done hence the recovery was doubtful. He argued that prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government.
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;
FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 9
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
(e) possesses any material or film either with or without the government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees'.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
'whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees'.
FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 10 5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, several doubts have been created over the factum of alleged recovery from the accused. To begin with, the apprehending witnesses have failed to place any DD entry regarding their patrolling duty on record. PW2 and PW4 admitted in their cross-examinations that they did not recall such DD entry. It is also abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities. PW-2 and PW-4 also admitted in their respective testimonies that the spot was residential area and public persons had been asked to join the investigation but none had joined. No notice was served, as admitted by PW-5 in his cross-examination, and their names and addresses were not noted.
5.5 When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and 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 FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 11 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.
(2) When the true name and residence of such persons have been ascertained, he shall be released on FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 12 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 FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 13 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".
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 and the reliability of documents prepared during investigation. PW-2 did not recall vital particulars such as which document was prepared first by the IO or how many documents were prepared prior to the registration of FIR. He could also not recall how far the spot was from the police station or how the case property was taken to the police station. PW-4 stated that the case property was taken by him in a rickshaw to the police station which was not occupied by the accused. He also stated that he was not aware when the other FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 14 witnesses left the spot. In contradiction, PW-5 stated that he had left the spot along with PW-2 and PW-4 at around 12:30 AM. He also stated that the case property was taken to the PS in an e- rickshaw, committing to mention how his motorcycle came back to the police station. Ld. Counsel for accused also pointed out that only the signature of the IO was placed on the site plan.
5.8 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property and the same is supported by the cross-examination of the witnesses. Firstly, it is noted that as per prosecution evidence seal was handed over to PW-4 after sealing the case property. PW-4 has not stated anything regarding whom he had handed over such seal to. However, the IO ie. PW-5 admitted that the seal and case property were deposited at the malkhana around the same time. As admitted by the witnesses, no seal handing over or return memo was made. Admittedly, the seal was never handed over to any independent person and remained with the officials of the same police station, if not the IO himself. Tampering with the case property as well as the seal cannot be ruled out in such a case. 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 Additionally, the seizure memo in the present case is stated to have been made prior to preparation of tehrir and FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 15 registration of FIR by all recovery witnesses and PW-5 confirmed in his cross-examination that the contents of the seizure memo were prepared in one go without making any changes to it thereafter. However, the seizure memo on record bears complete particulars of the present case FIR in the same handwriting as the rest of the documents. This raises doubt on the proceedings as the implication is that either the FIR was registered prior in time or the document in question was prepared later on at the police station. In both cases, the benefit of doubt goes to the accused person.
5.10 Most importantly, the very existence of violation of the excise policy has been brought into question as only five quarter bottles among those seized were 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. Now, since the State has only found five bottles containing 180 ml alcohol each, 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-5 in his cross- examination.
5.11 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 FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 16 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 Anil S/o Amar Singh R/o House no. D-90, 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 Digitally signed by SUKRITI ANNOUNCED IN THE OPEN SUKRITI SINGH SINGH Date:
COURT ON 26.05.2025 2025.05.27 16:41:09 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 17 pages, all signed by the presiding officer Digitally signed by SUKRITI SUKRITI SINGH SINGH Date:
2025.05.27 16:41:12 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 127/2019 State Vs Anil U/s 33/38 Delhi Excise Act 17