Delhi District Court
State vs Dalip on 29 January, 2026
IN THE COURT OF SH. ANKIT KARAN SINGH
JUDICIAL MAGISTRATE FIRST CLASS-08, WEST
TIS HAZARI COURTS, DELHI
CNR No. DLWT02-001827-2020
CIS No. 1011/20
State Vs. Dalip & Anr
FIR No. 306/2019
PS. Ranhola
U/s. 33/38 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 22.05.2019
2) The name of the complainant : ASI Banwari Lal
3) The name & parentage of accused : 1. Dalip S/o Amin
R/o H.no. 64C, Gali no.1, Defence
Enclave, Part II, Mohan Garden,
New Delhi
2. Dara S/o Mukesh,
R/o H.no. 64C, Gali no.1, Defence
Enclave, Part II, Mohan Garden,
New Delhi
4) Offence complained of : u/s. 33/38 Delhi Excise Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquittal
7) The date of such order : 29.01.2026
Date of Institution : 28.01.2020
Final Arguments heard on : 29.01.2026
Judgment reserved on : 29.01.2026
Judgment announced on : 29.01.2026
State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 1/9
JUDGMENT
1) The case of the prosecution against the accused persons are that on
22.05.2019 at about 6.20 pm at Vikas Nagar, Near Mangal Bazar Chowk, Gali Sareaam, Mohan Garden, Delhi, within the jurisdiction of PS Ranhola, both accused were found with illicit liquor as detailed in seizure memo Mark 'A' without any permit or license.
2) In support of its version, prosecution has examined three witnesses. Accused persons admitted FIR no. 306/19 is Ex. A1, Certificate U/s 65B of IE Act is Ex. A2, DD no.50B dated 22.05.2019 is Ex. A3, Chemical examiner report is Ex. A4 and statement of Ct. Vinod U/s 161 of CrPC is Ex. A5.
3) After conclusion of prosecution evidence, statement of accused persons was recorded separately wherein accused persons claimed to be innocent and denied the allegations against them. Accused persons opted not to lead any DE.
4) I have heard Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
5.1) PW-1 ASI Banwari Lal deposed that on 22.05.19 PW1 was posted at PS Ranhola as an ASI. On that day, PW1 alongwith Ct. Roopa Ram were on patrolling duty and while patrolling at around 06.20 PM, they reached at Mangal Bazar Road chowk. They met with secret informer who informed that two persons brought illicit liquor on rehdi rickshaw in the front gali. Thereafter, they reached at the spot and found that two persons were picking up plastic kattas lying on the vacant plot. They apprehended both the said persons whose names later on were revealed as Dalip and Dara, who are accused persons. They checked the plastic kattas and they were 7 in numbers. Out of which 2 plastic kattas were containing 100 quarter bottles each of brand Asli Santara Masaledar desi sharab for sale in Haryana only, two plastic kattas were containing 96 quarter bottles each of the brand Impact whiskey, one plastic katta was containing 94 quarter bottles of brand Impact whiskey and one State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 2/9 another plastic katta was containing 70 quarter bottles of brand Double Blue blended and last plastic katta was containing 85 quarter bottles of brand Episode.
PW1 requested 3-4 persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. PW1 seperated one quarter bottles from each plastic katta as sample and sealed them with the seal of BL. Remaining case property was also sealed with the seal of BL and seized the same vide memo Ex. PW1/A. PW1 filled form M-29 Ex. PW1/B bearing my signature at point A. PW1 prepared the rukka Ex. PW1/C bearing my signature at point A, and same was handed over to Ct. Roopa Ram for registration of FIR. Accordingly, he took the same to PS and got FIR registered and came back at the spot alongwith IO. PW1 produced accused alongwith recovered case property and prepared relevant documents before the IO. IO prepared site plan at my instance which is Ex. PW1/D bearing my signatures at point A. IO interrogated PW1 and thereafter PW1 was relieved from the spot. The witness correctly identified accused persons. The witness correctly identified the case property produced before the court today as the same case property/illicit liquor quarter bottles which was seized by him from the possession of accused persons. The case property is sealed with seal of RK. The case property exhibited as EX-P1. The MHC(M) has also produced the confiscation/destruction order of the case property in the present FIR. The order is executed by Assistant Commissioner Excise and the same is dated 14.10.2022. The order is accompanied with a CD. This order and this CD is marked as Mark A (Colly).
5.2) PW-2 Hct. Kapil PIS deposed that on 22.05.2019, PW2 was posted at PS Ranhola as Hct. On that day, the investigation of case was marked to PW2 after lodging of the FIR and after receiving the same, PW2 went to the spot and PW2 prepared the site plan at his instance of ASI Banwari Lal which is already exhibited as Ex. PW-1/D bearing my signatures at point B. PW2 carried out the personal search of accused vide memo Ex. PW-2/A and Ex. PW-2/B bearing my signatures at point A. PW2 arrested the accused vide memo Ex. PW-2/C and PW-2/D bearing my signatures at point A. PW2 recorded disclosure statement of accused vide memo State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 3/9 Ex. PW-2/E and Ex. PW-2/F bearing my signatures at point A. Thereafter, they all came back to the PS along with the accused after his medical and the case property was deposited in the malkhana of PS by PW2 and furhter accused was produced before the court and sent to J/C. PW2 recorded statement of witnesses u/s 161 Cr. PC. PW2 sent the sample bottle to the excise result and after receving the excise result which is already Ex. A-4 and PW2 prepared the chargesheet and file the same before the court.
5.3) PW-3 HC Roopa Ram deposed that on 22.05.2019 PW3 was posted at PS Ranhola as an ASI. On that day, PW3 alongwith ASI Banwari Lal were on patrolling duty and while patrolling at around 06.20 PM, they reached at Mangal Bazar Road chowk. They met with secret informer who informed that two persons brought illicit liquor on rehdi rickshaw in the front gali. Thereafter, they reached at the spot and found that two persons were picking up plastic kattas lying on the vacant plot. They apprehended both the said persons whose names later on were revealed as Dalip and Dara, who are accused persons. IO checked the plastic kattas and they were 7 in numbers. Out of which 2 plastic kattas were containing 100 quarter bottles each of brand Asli Santara Masaledar desi sharab for sale in Haryana only, two plastic kattas were containing 96 quarter bottles each of the brand Impact whiskey, one plastic katta was containing 94 quarter bottles of brand Impact whiskey and one another plastic katta was containing 70 quarter bottles of brand Double Blue blended and last plastic katta was containing 85 quarter bottles of brand Episode. IO requested 3-4 persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. IO seperated one quarter bottles from each plastic katta as sample and sealed them with the seal of BL. Remaining case property was also sealed with the seal of BL and seized the same vide memo already Ex. PW1/A bearing my signature at point C. IO filled form M-29. IO prepared the rukka and handed over to PW3 Ram for registration of FIR. Accordingly, PW3 took the same to PS and got FIR registered and came back at the spot alongwith IO/HC Kapil. ASI Banwari Lal produced accused alongwith recovered case property and prepared relevant documents before the IO. IO State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 4/9 prepared site plan at his instance which is alreday Ex. PW1/D bearing my signatures at point C. IO carried out the personal search of accused vide memo already Ex. PW-2/A and Ex. PW-2/B bearing my signatures at point B. IO arrested the accused vide memo already Ex. PW-2/C and PW-2/D bearing my signatures at point B. IO recorded disclosure statement of accused vide memo already Ex. PW-2/E and Ex. PW-2/F bearing my signatures at point B. Thereafter, they all came back to the PS along with the accused after his medical and the case property was deposited in the malkhana of PS by PW3 and furhter accused was produced before the court and sent to J/C. IO recorded my statement u/s 161 Cr. PC.
6) It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
7) Ld. counsel for the accused vehemently argued that the present case is a false one and is the example of high handedness of the police. He argued that the accused has been illegally framed in the present case and it is evident from the fact that the accused was allegedly apprehended from the public place and but there is no public witness to the proceedings. He argued that police officials conducted the entire proceedings and same is not trustworthy. Ld APP for the State argued that the public persons did not join the proceedings despite requests.
8) The manner in which the inquiry, seizure and search etc. was stated to be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-1 to PW-3 that accused was apprehended along with the alleged illicit liquor at public place but there is no public witness in the present case. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 5/9 "18. 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, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers 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".
9) The names of the persons to whom the request was made to join the investigation has nowhere mentioned. No written notice has been placed on record which must be given to the public persons. Merely deposing that public person refused to join the investigation is of no avail. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
10) It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. 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 was very essential for the prosecution to have established from stage to stage the fact that the sample State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 6/9 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."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh vs. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
11) No seal handing over memo is on record. The police official having the possession of the seal was posted in the same police station in the malkhana of which the case property was lying. There was ample opportunity for tempering with case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
12) Besides all this, in the present case, the seizure memo of illicit liquor Ex.PW1/A bears the number of FIR. As per the rukka and testimony of witnesses, the seizure memo was prepared prior to registration of FIR. If that be so then how seizure memo bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
13) Further the case property was sent for chemical examination on 24.07.2019 while the same was seized on 22.05.2019. The entire paper formalities were completed in 22.05.2019 only. When the entire codal formalities were completed on 22.05.2019 than the delay of around 2 months in sending the exhibits for chemical examination is beyond comprehension. Again the police official having the possession of the seal was posted in the same police station where the case property was lying. There was ample opportunity for tampering with the case property and State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 7/9 benefit of this laxity on the part of investigating officer should go to the accused.
14) Being guided by above-said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
15) In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution ..........................."
16) The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 8/9 doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
17) In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Dalip and Dara stand acquitted of charged offence. Case property be confiscated to the State. Same be destroyed. Personal bail bonds U/s 437 A Cr.PC furnished. File be consigned to Record Room after due compliance.
Digitally signed by ANKIT ANKIT KARAN KARAN SINGH SINGH Date: 2026.01.29 17:31:24 +0530 Announced in the open court (ANKIT KARAN SINGH) on 29.01.2026 JMIC-08,West District, Tis Hazari Courts, Delhi. State Vs. Dalip & Anr FIR No. 306/19 U/s. 33/38 Delhi Excise Act 9/9