Delhi District Court
State vs Anil Kumar on 7 January, 2026
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-03,
SOUTH, SAKET COURTS,NEW DELHI
Presided over by- Ms. Nidhi Singh, DJS
Cr. Case No. : 7277/2022
CNR No. : DLST020378732022
FIR No. : 369/2021
Police Station : Neb Sarai
Section(s) : Section 33 Delhi Excise Act, 2009
In the matter of:
STATE
VERSUS
ANIL KUMAR
S/o Sh. Himmat Singh
R/o H No. 526, Gali No. 8, L-1st, Sangam Vihar, New Delhi
...... Accused
Offence Charged of Section 33 Delhi Excise Act, 2009
Plea of Accused Not Guilty
Date of commission of offence 07.09.2021
Date of registration of FIR 07.09.2021
Date of filing of chargesheet 11.11.2022
Date of Judgment 07.01.2026
Final Order ACQUITTAL
Digitally
signed by
NIDHI
NIDHI SINGH
SINGH Date:
2026.01.07
17:13:02
+0530
State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 1 of 12
-:BRIEF FACTS AND REASONS FOR DECISION:-
1. In brief, the story of the prosecution is that during beat patrolling, Ct. Sandeep and Ct. Mohan on 07.09.2021 at around 09:10 PM near Mother Dairy Booth, L-1st, Sangam Vihar, New Delhi within the jurisdiction of PS Neb Sarai found accused/Anil Kumar in possession of illicit liquor (150 quarters of Fresh Motta Masaledar Desi Sharab/ For Sale In Haryana Only) without any license or permit. The illicit liquor was accordingly seized. Sample quarters from the seized liquor was sent for examination. On its basis, the present FIR bearing no. 369/2021 was registered at PS Neb Sarai against the accused/ Anil Kumar.
2. Upon completion of investigation, charge sheet was filed u/s 173 Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') under Section 33 Delhi Excise Act was filed and cognizance was taken. A copy of the charge sheet was supplied to the accused in compliance with Section 207 Cr.P.C.
3. After considering the record and hearing the arguments, charge u/s 33 of Delhi Excise Act was framed against the accused Anil Kumar to which the accused pleaded "not guilty" and claimed trial. The matter then was listed for Prosecution Evidence (hereinafter referred to as, 'PE').
4. The accused admitted the genuineness of certain documents- the FIR 369/2021 (without contents, Ex. A-1), Certificate u/s 65 B Indian Evidence Act(without contents, Ex. A-2), Endorsement by Duty officer (without contents, Ex. A-3), GD No. 105A dated 07.09.2021 (without contents, Ex. A-3) and Report of chemical examiner (without contents, Ex. A-4). Therefore formal examination of the corresponding witnesses was dispensed with under section 294 Cr.P.C and the above said documents were directed to be read in evidence without their formal proof. Digitally signed NIDHI by NIDHI SINGH SINGH Date:
2026.01.07 17:13:06 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 2 of 12
5. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
Oral Evidence
1. HC Sandeep PW-1
2. HC Mohan PW-2
3. ASI Jai Ram PW-3 Documentary Evidence
1. Complaint given by Ct. Sandeep Ex. PW1/B
2. Seizure memo of illicit liquor Ex. PW1/A
3. Arrest Memo Ex. PW1/C
4. Personal Search Memo Ex. PW1/D
5. Disclosure Statement Ex. PW1/E
6. Tehrir Ex. PW3/A
7. Site Plan Ex. PW2/A
8. Case property destruction order dated 23.11.2022 Ex. P1
9. Sample case property produced in unsealed condition Ex. P2
6. After examination of above cited witnesses, PE was closed vide order dated 29.08.2025.
7. To enable the accused to personally explain the incriminating circumstances appearing in evidence against him, statement of accused/ Anil Kumar, without oath, was recorded under Section 313 r/w 281 Cr.P.C. In reply, the accused asserted his Digitally signed by NIDHI NIDHI SINGH SINGH Date:
2026.01.07 17:13:11 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 3 of 12 innocence and stated that he has been falsely implicated in the present case at the behest of the investigating agency and recovery has been planted upon him. He chose not to lead any evidence in his defence.
8. Short point for determination before this court is as under:
"Whether on 07.09.2021 around 09:10 PM, near Mother Dairy Booth, L-1st, Sangam Vihar, New Delhi, within the jurisdiction of PS Neb Sarai, the accused was found in possession of illicit liquor (150 quarters of Fresh Motta Masaledar Desi Sharab/ For Sale In Haryana Only) without any license or permit thereby committing the offence punishable under Section 33 of the Delhi Excise Act ?"
9. Ld. APP submitted that the case has been proved beyond reasonable doubt as the witnesses have identified the case property and the accused during their deposition and that testimonies of all PWs have supported the main case. Ld. APP thus prayed that the accused be convicted of the offence charged u/s 33 of the Delhi Excise Act.
10. Per Contra, Ld. Defence Counsel for the accused has submitted that the accused is completely innocent and has been falsely implicated in the present case and that the alleged recovery of the illicit liquor has been falsely planted upon him. Ld. Counsel further submitted that not joining the public witnesses despite availability and not serving any notice to them by the police officials casts shadow of doubt on the story of prosecution, especially when they allegedly received an intimation regarding apprehension of accused with illicit liquor. Further, that the seal was always in possession of the raiding party and thus recovery cannot be duly proved and there is no seal handing over memo. Contradictions in the testimony of PW-1 and PW-2 who allegedly arrived at the spot at the same time, have been highlighted. It was further argued that all the documents were prepared at the police station at the behest of the local police. Ld. counsel finally submitted that the prosecution has failed to prove its Digitally signed by NIDHI NIDHI Date:
SINGH SINGH 2026.01.07 17:13:14 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 4 of 12 case beyond reasonable doubt and that, therefore, the benefit of the same ought to be extended to the accused, and that the accused is liable to be acquitted of the alleged offence.
11. Submissions heard. Record perused carefully.
12. In the present case the accused is charged under Section 33 of the Delhi Excise Act. It is also significant to note that Section 52 of Delhi Excise Act presumes that the accused has committed the offence under Section 33 of the Act, for the possession of which the accused is unable to account for satisfactorily. However, this presumption can be rebutted, if proved contrary. It is further to be noted that it is the duty of prosecution to fulfil the initial requirement under Section 52 of the Delhi Excise Act Act.
13. The recovery of the illicit liquor is alleged to have been effected on 07.09.2021 at around 09:10 PM, near Mother Dairy Booth, L-1st, Sangam Vihar, New Delhi, within the jurisdiction of PS Neb Sarai. The place of recovery and timing of apprehension is such that the presence of independent witnesses cannot be ruled. The apprehension and search of an accused before an independent witness renders authenticity and creditworthiness to the proceedings carried out by the police authorities. It also strengthens the prosecution case against the accused. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the police officials. The absence of such a safeguard in the form of a public witness is to be seen with suspicion. All witnesses have admitted to the presence of public persons at the spot. However, no public independent person was cited as a witness in this case. No proof of any notice served upon them has been placed on record. There is nothing in the testimony of prosecution witnesses that any sincere efforts were made by the IO to join independent witnesses in the proceedings/ investigation.
Digitally signedNIDHI by NIDHI SINGH SINGH Date:
2026.01.07 17:13:18 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 5 of 12
14. The aforesaid flaw in the investigation makes the story of the prosecution unworthy of credit, specifically in the light of judgment in the case titled Anoop Joshi v. State 1992 (2) C. C. Cases 314 (HC) wherein Hon'ble High Court of Delhi observed:
"...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. In the present case, it is evident that no such sincere efforts have been made. People could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the people had declined to join the raiding party, the police could have later on taken legal action against such people because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC..."
15. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"...The recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials arc to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola..."
16. Further, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
Digitally signed by NIDHI NIDHI SINGH Date:
SINGH 2026.01.07 17:13:21 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 6 of 12 "...It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions..."
17. The omissions / failure on the part of the investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light of the ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. The accused had already been apprehended and it is not a case where the investigation required the police to act in haste and to proceed to some other spot to apprehend other accused/recover other case property. Admittedly, no written requisition was made by the police to any public person to join the investigation. Even if the public persons refused to join the investigation, notice Digitally signed by NIDHI NIDHI SINGH SINGH Date:
2026.01.07 17:13:25 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 7 of 12 under section 160 CrPC ought to have been served on them by IO to satisfy the burden that sincere efforts were made to join public persons in the investigation. Based on the above, it is evident that a mere bald explanation has been put forth by the police that public persons were not joined due to paucity of time and hence, it is evident that no sincere efforts were made to join independent witnesses.
18. However, at the same time, it is a settled position of law that the prosecution version cannot be thrown out or doubted on the sole ground of non- joining of public witnesses. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
19. As per evidence on record, the seal "RR" after use was not given to any independent public person, and was in fact handed over to a police official posted in the same police station at the relevant time and also perhaps a member of the raiding party. However, there is nothing on record to show that the seal was deposited in malkhana in order to allay any doubts of tampering. Admittedly there is no seal handing over memo. Thus, the possibility that the case property may have been tampered with cannot be ruled out. Reliance in this regard is placed upon the judgment of the Hon'ble High Court of Delhi in Abdul Ghaffar v. State (Delhi Admn.), 1996 SCC OnLine Del 997:
"...7. What finally gives a burial to the prosecution version relates to safe custody of the parcels. The Investigating Officer says that after the parcels had been sealed, the seal was handed over to constable Satbir Singh (P.W. 4). I fail to see any cogent justification for such an action. If Mohd. Mansoor had been joined as a public witness in the raiding party, there was no occasion for the Investigating Officer to hand over his seal not to Mohd. Mansoor but to constable Satbir Singh. This makes Digitally signed by NIDHI NIDHI Date:
SINGH SINGH 2026.01.07 17:13:28 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 8 of 12 +0530 the whole affair look fishy. This is not all. The Investigating Officer nowhere asserts that so long as the parcels remained in his custody they were not tampered with. As if all this was not enough, even the Moharar Malkhana with whom the case property remained deposited nowhere provides such assurance..."
20. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with the case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that :
"...The very purpose of giving a seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out..."
21. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that :
"...The seals after use were kept by the police officials themselves. Therefore, the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."
22. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and Digitally signed by NIDHI NIDHI Date:
SINGH SINGH 2026.01.07 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 9 of 12 17:13:32 +0530 shall be attested by the latter personality by signature or seal. In the present case, all these departures or the arrival entries have not been proved on the record by the prosecution and it has been admitted by all the witnesses in their cross examination that there is no record of entries of their arrival and departure. In absence of such proof, the presence of the police officials at the spot cannot be fully believed. Reference in this regard can be made to Rattan Lal Vs. State 1987 (2) Crimes 29.
23. Further, in the present case, the seizure memo was prepared before registration of FIR. However, the seizure memo mentions the FIR number on the same but there is no explanation furnished by prosecution, as to how and under what circumstances, the same has appeared. Multiple versions have been put forward with respect to the same. Upon a Court question, the IO has submitted that the FIR number was appended after registration of the FIR, however the same witness has previously stated that there were no alterations to the seizure memo. The same causes reasonable doubt in the prosecution story as held in the judgment of Giri Raj Vs. State 83 (200) DELHI LAW TIMES 201, wherein the Hon'ble High Court of Delhi held in Para 5 as:
"...The prosecution has not offered any explanation whatsoever as to under what circumstances a number of the FIR Ex.PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex.PW2/a) was recorded prior to the alleged recovery of the contraband or the number of the said FIR was inserted in these documents after its registration. In both the situation, 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. That being so, the benefit arising out of such a situation must necessarily go to the appellant...".
Digitally signed by NIDHI NIDHI SINGH SINGH Date:
2026.01.07 17:13:35 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 10 of 12 The same view was adopted in the case of Mohd. Hashim. Appellant Vs. State 2000 CRIL.J. 15010 , Pawan Mewa Ram Vs. State 200 CRI.L.J.114 and Kumar Vs. Delhi Administration, 1987 CCC 585.
24. Further the absence of photographs or videos, cast a serious doubt over the case of the prosecution. In the present times where camera phones are abundant, no reason is seen as to why no photographs or videos of the alleged incident could not have been filed. No CCTV footage or photos of alleged recovery were filed with the chargesheet. Moreover, in the case at hand multiple contradictions exist which have been reflected from the cross examination of the witnesses above with respect to the time of actual sending of rukka, distance of the spot from the concerned PS, which further make the recovery as stated to be improbable.
25. In the present case, the evidence apparent on record is not sufficient for bringing home the guilt of the accused and the prosecution story suffers from material infirmities. Additionally, there are no public witnesses who have been joined in the investigation of the present case and there are catena of judgments which provide that whenever public witnesses are present, they should be joined. Any passenger or public person could have easily been made a witness and this omission of joinder of witnesses raises doubts. It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency and unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public persons were not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses. (Sanspal Singh, Vs. State of Delhi, SC 1999 Cr.L.J. 19).
Digitally signed by NIDHI NIDHI SINGH SINGH Date:
2026.01.07 17:13:38 +0530 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 11 of 12
26. In criminal jurisprudence, an accused is presumed to be innocent, until proven guilty, and the burden of proving the guilt of the accused solely rests upon the prosecution by leading positive evidence. The accused is not expected to prove his innocence to the hilt. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. The guilt of the accused is not to be proved by mere preponderance of probabilities but it has to be proved beyond all reasonable doubts. It is for the prosecution to travel the entire distance from "may have" to "must have". Suspicion, howsoever grave, cannot take the place of proof.
27. Thus, in view of the foregoing analysis, this court is of the considered view that the aforesaid deficiencies in the case of the prosecution are sufficient to raise a doubt on the veracity of the entire prosecution case against the accused and the benefit of doubt is extended to him. Prosecution has miserably failed in proving its case beyond reasonable doubt. Accordingly, accused Anil Kumar stands acquitted of the offence under Section 33 of Delhi Excise Act in the present case.
Announced in open Court on this 7th day of January 2026.
This Judgment consists of 12 pages and each page bears my signature.
Digitally signed by NIDHINIDHI SINGH Date:
SINGH 2026.01.07 17:13:43 +0530 (NIDHI SINGH) JMFC-03, South District, Saket Courts,Delhi 07.01.2026 State vs Anil Kumar FIR No. 369/2021 PS Neb Sarai Page 12 of 12