Delhi District Court
State vs Ashu on 11 December, 2025
IN THE COURT OF SH. ANKIT KARAN SINGH
JUDICIAL MAGISTRATE FIRST CLASS-08, WEST
TIS HAZARI COURTS, DELHI
CNR No. DLWT02-015645-2023
CIS No. 8564/23
State Vs. Ashu
FIR No. 89/23
PS. Ranhola
U/s. 33/38 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 21.01.2023
2) The name of the complainant : Ct. Laxman.
3) The name & parentage of accused : Ashu S/o Ashok, R/o B73, Commandar Chowk, Vikas Nagar, 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 : 11.12.2025
Date of Institution : 21.09.2023
Final Arguments heard on : 11.12.2025
Judgment reserved on : 11.12.2025
Judgment announced on : 11.12.2025
State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 1/9
JUDGMENT
1) The case of the prosecution against the accused is that on 21.01.2023 at
about 8.20 pm at plot no.168, Vikas Nagar near Commander Chowk, Delhi within the jurisdiction of PS Ranhola accused was found in possession of total 20 gatta petties. Out of the said gatta petties 6 gatta petties contained illicit liquor (50-50 each quarter bottles of 180 ML each) of brand "Strong Liquor Taka tak Metro Liquor" and 14 gatta petties(50-50 each quarter bottles of 180 ML each) of illicit liquor of brand "Fresh Mota Orange Masaledar Desi Sharab" for sale in Haryana only as detailed in seizure memo Mark 'X' without any permit or licence
2) After investigation, charge-sheet was filed against the accused. The copy of charge-sheet was supplied to the accused in compliance of Section 207 Cr. P.C. Thereafter, charge was framed against the accused under Section 33/38 Delhi Excise Act to which accused pleaded not guilty and claimed trial.
3) In support of its version, prosecution has examined two witnesses. Accused admitted as per section 294 Cr.PC, the factum as to the FIR no. 810/202270/2021 vide Ex. A1, certificate U/s 65B of IE Act vide Ex. A2, statement of HC Mahender vide Ex. A3, Statement of HC Raj Kumar vide Ex. A4, Statement of Dr. Rajesh Joshi Chemical Examiner vide Ex. A5. The documents were admitted and the concerned witnesses were dropped.
4) After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against them. Accused opted not to lead any DE.
5) I have heard Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
6) The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
6.1) PW-1 HC Rakesh Kumar deposed that on 21.01.2023. PW1 was posted at PS Ranhola as HC. It is further stated that on that day, PW1 received one DD no.
122A, vide which PW1 was informed that Ct. Laxman had apprehanded the accused State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 2/9 namely Ashu with illicit quarter bottles near plot no 168, Vikas Nagar, Delhi. It is further stated that thereafter, PW1 reached the spot and Ct. Laxman handed over the accused and custody of case property to PW1 for further course of action. It is further stated that PW1 asked some publie persons to join the investigation, however nobody agreed for the same. It is further stated that PW1 checked the said gatta paties one by one and took out all the quarter bottles one by one and found it to be containing a total of 50 illicit liqour quarter bottles of the make of" ADS fresh Mota Masaledar Desi Sharab" each of 180 ml for sale in Haryana only in 14 gatta paties and 50 illicit liqour quarter bottles of the make of Strong liquor TAKA TAK Metro Liquor" each of 180 ml for sale in Haryana only in 06 gatta paties. It is further stated that PW1 took out one quarter bottle as a sample from each gatta paties and closed their mouth with the help of a white cloth and sealed it with the seal of RK and gave it serial no. A1- 20A. It is further stated that PW1 kept the remaining bottles in the said gatta paties and closed their mouth with the help of a white cloth and sealed them with the seal of RK and gave it serial no. 1-20. It is further stated that PW1 filled up form M-29 is exhibited as Ex. PW1/A and the seal was handed over to Ct. Laxman after it's use. It is further stated that PW1 seized the case property vide seizure memo exhibited as Ex.PW-1/B. It is further stated that PW1 recorded the statement of Ct. Laxman and prepared the tehrir which is exhibited as Ex. PW-1/C and sent him to the PS for getting the FIR registered. It is further stated that after sometime, Ct. Laxman came back to the spot alongwith original tehrir and copy of FIR and handed over the same to PW1 for further course of action. It is further stated that PW1 prepared the site plan at the instance of Ct. Laxman vide memo exhibited as Ex. PW-1/D. It is further stated that PW1 prepared the arrest memo vide Ex. PW-1/E and personal search memo Ex. PW-1/F and his discolure memo vide Ex. PW-1/G. It is further stated that thereafter, the case property and accused was taken to the PS and the case property was deposited in the melkhana of PS by PW1 Laxman has sent for medical examination at SGM hospital, Delhi. It is further stated that PW1 recorded the statements of the witness at the spot.
State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 3/9 6.2) PW-2 HC Laxman deposed that on 21.01.2023, PW2 was posted at PS Ranhola as Contable. It is further stated that on that day, PW2 was on for petrolling in the beat no.01. At about 08.20 PM. It is further stated that PW2 reached near commondar Chowk near plot number 168, Vikas Nagar, Delhi. It is further stated that PW2 saw one person who was putting the aritcle in your house and after seeing PW2 in uniform, he turned back towards his house but PW2 some how apprehanded him and upon inquiry he told his name Ashu. It is further stated that PW2 found some illicit quarter bottles in 02 gatta paties and 18 gatta paties found in his house. It is further stated that PW2 informed the duty officer and after some time IO/HC Rakesh Kumar reached the spot. It is further stated that IO asked some public persons to join the investigation but to no avail. It is further stated that IO checked the said gatta paties and found a total of 50 quarter bottles of the make of ADS fresh Mota Maseldar Desi Sarab for selling in Haryana only (180 ml) in 14 gatta paties and 50 quarter bottles of the make of Strong liquor TAKA TAK Metro Liquor for selling in Haryana only (180 ml) in 06gatta paties. It is further stated that IO took out one bottle as a sample from each brand and sealed it with the seal of RK. It is further stated that IO kept back the remaining bottle in the said gatta paties and sealed it with the seal of RK and the seal was handed over to me. IO filed up form M-29 which is already Ex. PW-1/A. It is further stated that IO seized the case property vide memo exhibited already Ex. PW-1/B. It is further stated that IO recorded his statement which is alredy Ex. PW-1/C and prepared the tehrir and sent PW2 to the PS for getting the registration of FIR. It is further stated that PW2 went to the PS and got the FIR registered. It is further stated that after some time, PW2 came back to the spot and handed over the copy of FIR and tehrir to IO. It is further stated that IO recorded the discloure statement of the accused vide memo exhibited as alredy Ex. PW-1/G. IO arrested the accused vide memo exhibited as already Ex. PW-1/G and IO recorded the personal search memo of the accused vide memo exhibited as already Ex. PW-1/E. It is further stated that thereafter, they brought the case property and accused to the PS and case property was deposited in the malkhana of the PS. State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 4/9
8) 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.
9) 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-2 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:
"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 State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 5/9 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".
10) 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.
11) 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 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 Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 6/9 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."
12) 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.
13) Besides all this, in the present case, the seizure memo of illicit liquor Ex.PW1/B 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.
14) Further the case property was sent for chemical examination on 17.02.2023 while the same was seized on 21.01.2023. The entire paper formalities were completed in 21.01.2023 only. When the entire codal formalities were completed on 21.01.2023 than the delay of around 27 days 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 benefit of this laxity on State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 7/9 the part of investigating officer should go to the accused.
15) 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.
16) 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 ..........................."
17) 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 State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 8/9 to benefit of 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).
18) 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 Ashu stands 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.
ANKIT KARAN Digitally signed by ANKIT
KARAN SINGH
SINGH Date: 2025.12.11 16:24:01 +0530
Announced in the open court (ANKIT KARAN SINGH)
on 11.12.2025 JMIC-08,West District,
Tis Hazari Courts, Delhi.
State Vs. Ashu FIR No. 89/23 U/s. 33/38 Delhi Excise Act 9/9