Delhi District Court
State vs Ramesh on 7 April, 2026
IN THE COURT OF MS. BHARTI BENIWAL, JUDICIAL
MAGISTRATE FIRST CLASS-05 (NORTH), ROHINI
COURTS
FIR No.651/2020
PS Bawana
U/s 33 Delhi Excise Act
State Vs. Ramesh
Crl. Case No. : 3871/2022
Date of institution of the case : 29.03.2022
Date of commission of offence : 23.10.2020
Name of the complainant : Ct.Manoj
No.2413/OND
Name of accused and address : Ramesh
S/o Sh.Deshraj
R/o O-241, Sector 1,
DSIIDC, Bawana, Delhi
Offence complained of : U/s 33 of Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved: 24.02.2026
Date of judgment : 07.04.2026
_____________________________________________________________________________
State Vs. Ramesh FIR No.651/2020 Page No. 1 of 17
Digitally signed
BHARTI by BHARTI
BENIWAL
BENIWAL Date: 2026.04.07
16:56:39 +0500
JUDGMENT
1. The accused has been charge-sheeted for committing offences punishable under Section 33 of Delhi Excise Act, 2009 (hereinafter, "Excise Act").
2. It has been alleged by the prosecution that on 23.10.2020 at around 07 : 15 PM at E Block, Sector 1, DSIIDC, Bawana, Delhi, within the jurisdiction of PS Bawana, accused was found in possession of illicit liquor without permission or permit for the same. As such, it is alleged that he committed an offence punishable under Section 33 of Delhi Excise Act, 2009.
3. After registration of subject FIR, the investigating officer undertook investigation and on culmination of the same, charge sheet against accused was filed. After taking cognizance of the offence, he was summoned to face trial for the abovesaid offence.
4. Thereafter, copy of charge-sheet was supplied to accused under Section 207 Cr.P.C. After giving opportunity to state as well as accused for making submissions on charge, a charge for offences u/s 33 of Delhi Excise Act, 2009 was served upon the accused, to which he pleaded not guilty and claimed trial.
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5. The matter was then fixed for recording of PE. In support of its version, prosecution has examined a total of 4 witnesses-
Witness Name Nature of testimony He deposed that on 23.10.2020, while he was posted at PS Bawana as a Constable. On receipt of DD No. 107-A, he alongwith IO HC PW-1 Parmanand reached the spot where Ct. Manoj met them and handed over the custody of the accused along with one plastic katta containing illicit liquor. He requested 4-5 public persons to join HC Rahul the investigation, however, all refused due to their personal reasons.
He checked the plastic katta and found illict liquors for sale in Haryana only. He took out one quarter bottle as sample and sealed the remaining case property as well as the sample with the seal of "PL".
He filled Form M-29 and prepared the seizure memo Ex. PW-1/A. He recorded the statement of Ct. Manoj Ex. PW-2/A and prepared the rukka Ex.PW-3/A, which was handed over _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 3 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:56:48 +0500 to ASI Parmanand for registration of FIR. After registration of FIR, he returned to the spot and handed over the copy of FIR and original rukka to him.
He served notice under Section 41A Cr.P.C. upon the accused and recorded his disclosure statement Ex. PW-1/C. He also prepared the site plan Ex. PW-3/B. Thereafter, the case property was deposited in the malkhana. He recorded statements of witnesses under Section 161 Cr.P.C., sent the sample to the Excise Laboratory, collected the result and, after completion of investigation, filed the charge-sheet before the Hon'ble Court.
Photographs of the case property were correctly identified.
Accused was present in the court and correctly identified by witness. Witness was cross examined by ld. Defence Counsel.
He deposed that on 23.10.2020, while he was posted at PS Bawana PW2 Ct.Manoj _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 4 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:56:53 +0500 as a Constable and was on patrolling duty in the area of Sector 1, DSIIDC Bawana, Delhi, , at about 7:15 PM, he noticed the accused was carrying one plastic katta on his shoulder. On suspicion, he checked the plastic katta and found containing illicit liquor. He informed the Duty Officer, pursuant to which IO HC Parmanand alongwith Ct.Rahul reached the spot. He handed over the custody of the accused and the recovered illicit liquor to the IO.
The IO requested 4-5 public persons to join the investigation, however, all refused due to their personal reasons. The IO checked the plastic katta and found the illicit liquor. One quarter bottle was taken as sample and the remaining case property was tied with a white cloth and sealed with the seal of "PL". The sample was also sealed with the seal of "PL". The IO filled Form M- 29 and prepared the seizure memo Ex. PW-1/A bearing his signature at point A. _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 5 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.04.07 16:56:56 +0500 Thereafter, the IO recorded his statement Ex. PW-2/A bearing his signature at point A, prepared the rukka and handed it over to him. He went to the Police Station, got the FIR registered and thereafter returned to the spot and handed over the copy of FIR and original rukka to the IO. The IO served notice under Section 41A Cr.P.C.
upon the accused and recorded her disclosure statement vide memo Ex.
PW-2/B. Photographs of the case property were correctly identified.
Accused was present in the court and correctly identified by witness.
Witness was cross examined by ld.
Defence Counsel.
PW3 ASI Parmanand He deposed that on 23.10.2020, (Investigating while he was posted at PS Bawana Officer) as a Constable. On receipt of DD No. 107-A, he alongwith HC Rahul reached the spot where Ct. Manoj met them and handed over the _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 6 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:01 +0500 custody of the accused along with one plastic katta containing illicit liquor. IO requested 4-5 public persons to join the investigation, however, all refused due to their personal reasons.
IO checked the plastic katta and found illict liquors for sale in Haryana only. IO took out one quarter bottle as sample and sealed the remaining case property as well as the sample with the seal of "PL". IO filled Form M-29 and prepared the seizure memo Ex. PW-1/A. IO recorded the statement of Ct. Manoj Ex. PW-2/A and prepared the rukka Ex.PW-3/A, which was handed over to ASI Parmanand for registration of FIR. After registration of FIR, he returned to the spot and handed over the copy of FIR and original rukka to him.
IO served notice under Section 41A Cr.P.C. upon the accused and recorded his disclosure statement Ex. PW-1/C. IO also prepared the site plan Ex. PW-3/B. Thereafter, the case property was deposited in _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 7 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:08 +0500 the malkhana. IO recorded statements of witnesses under Section 161 Cr.P.C., sent the sample to the Excise Laboratory, collected the result and, after completion of investigation, filed the charge-sheet before the Hon'ble Court.
Photographs of the case property were correctly identified.
Accused was present in the court and correctly identified by witness. Witness was cross examined by ld. Defence Counsel.
He deposed that in year 2020, he was posted at PS Bawana as HC.
On that day, further investigation of the present case was assigned to him. During the course of PW4 HC Chetan investigation, he collected the result of sample from the MHCM and thereafter, he prepared the charge sheet and file the same before the court.
_____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 8 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.04.07 16:57:14 +0500
6. The remaining documents i.e. FIR no.651/2020 Ex.A-1, Certificate under Section 65B of IEA Ex.A2, MHCM with register no.19 and 21 Ex.A3 and Excise Lab Report Ex.P4 were put to the accused, and were admitted by him under Section 294 CrPC. Accordingly, the corresponding witnesses were dropped from the list of prosecution witnesses. PE was closed thereafter.
7. Thereafter, in order to accord an opportunity to the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath under Section 313/281 CrPC. He submitted that he is innocent and has been falsely implicated in the present case. To a specific query, he stated that he does not wish to lead defence evidence in the affirmative.
8. The matter was then fixed for final arguments. Final arguments heard. Record perused. Considered.
9. In order to establish the offence under Section 33 of the Excise Act, the prosecution must fulfill all the essential ingredients of the offence. Section 33 of the Excise Act is reproduced for ready reference-
"33. Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision 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 _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 9 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:20 +0500 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 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 any 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 and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees"
It has to be proved-
(i) accused was found in possession of case property.
(ii) The case property is illicit liquor of a description, the possession of which without any permit or license contravened the provision of law.
10. Relying upon Section 52 of the Delhi Excise Act, learned Assistant Public Prosecutor for the State had argued that since the accused is charged with commission of offence punishable Section 33 of the Delhi Excise Act, a presumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence, and it is for the accused to prove the contrary. The said argument does not find favour with this Court.
11. Section 52 of the Delhi Excise Act reads as under:
_____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 10 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:26 +0500 "Presumption as to commission of offence in certain cases. (1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) 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".
As per Section 52(1), the words "for the possession of which he is unable to account satisfactorily" clearly reveal that as a prerequisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter, the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
12. The apprehension of the accused with the case property itself was not proved by the prosecution beyond reasonable _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 11 of 17 Digitally signed BHARTI by BHARTI BENIWAL BENIWAL Date: 2026.04.07 16:57:31 +0500 doubt. It is the case of the prosecution that the alleged recovery of the case property was made from the accused from a area, which is presumed to be a crowded one. The area of the alleged recovery, therefore, was presumably crowded. Despite this, no public witnesses were joined in the prosecution. The witnesses of the prosecution, PW2 and PW3 deposed on oath that despite availability of independent public witnesses, no such witnesses were joined in the investigation. PW2 and PW3 deposed that a request was made to public witnesses to join the investigation, but they refused, as a result of which no independent witnesses were joined in the investigation. Admittedly, however, IO did not serve any notice upon these witnesses consequent to this refusal.
13. Now, it is true that non-joining of independent witnesses cannot be a sole ground to discard the entire prosecution story, in view of the law laid down by the Hon'ble Supreme Court of India in Appabhai versus State of Gujarat AIR 1988 SC 696, evidence in each case has to be weighed in light of the peculiar factual matrix of the same. Non-joining of public witnesses, despite their easy availability, reflects lack of genuine efforts on the part of the prosecution, denting its case. The IO could have easily served notice in writing to the witnesses, to make them join the investigation. But not to be. Where the IO has failed to make genuine efforts to join public witnesses, veractity of the case of prosecution becomes doubtful. At this juncture, this court seeks guidance from the _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 12 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:37 +0500 law laid down by the Hon'ble High Court of Delhi in Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC):-
"18.It is repeatedly laid down by this Court 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 shop-keepers 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".
14. Further, the present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the relevant time by a police official namely Ct.Manoj who was on patrolling duty at the relevant time and place, as per the prosecution story. He deposed that he had made a departure entry while leaving the police station, but didn't specify the number thereof. This testimony doesn't support the case of prosecution. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. 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 _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 13 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.04.07 16:57:41 +0500 arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. PW1 has deposed that he indeed made a DD entry regarding his departure, but neither specified the number thereof, nor produced it on record. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Courtwherein it has been observed:
"if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
15. It is also evident from the record that prosecution has made no efforts whatsoever to dig out the source from which the illicit liquor was procured by the accused. Lack of any efforts on part of the police to interrogate the accused on these lines is also reflective of a shoddy investigation, benefit of which, must accrue to the accused.
16. These facts show that the prosecution could not prove the alleged recovery of illicit liquor from the accused. Thus, the foundational fact on which the presumption under Section 52 of the Excise Act could be raised was itself not proved by the _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 14 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:47 +0500 prosecution. Besides, even the fact that the case property comprised of illicit liquor was not proved by the prosecution beyond reasonable doubt.
17. The samples brought to the court were admittedly unsealed, as is revealed from the testimony of PW1, in his examination in chief. This fact not only casts the case of the prosecution in dubiety for the reason that the connection between the recovery and unsealed samples is impossible to establish, but also for the reason that as per testimonies of PW2 and PW3, samples were sealed with the seal of "PL". Even if the fact that case property was brought to the court in unsealed condition is disregarded, the same can not be considered a representative sample of the entire case property. The IO has not stated that the liquid from all the bottles was mixed, before drawing a sample therefrom. Thus, at best, the prosecution can be said to have proved that the sample bottles were containing illicit liquor, but not that the entire case property comprised of the same.
18. Further, the samples were sent for testing on 21.01.2021, despite the fact that the alleged recovery was made on 23.10.2020. The fact that the prosecution has failed to explain where the property was present during the intervening period of around 57 days also casts a shadow of doubt on the case of the prosecution. None of the witnesses examined by the prosecution have stated that the samples of illicit liquor taken for examination from the time they were taken and till the time _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 15 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.04.07 16:57:51 +0500 the said samples were handed over to the Public Analyst, the samples were not tampered with. In this regard, Hon'ble Delhi High Court has held inDatu Ram v. State (Delhi) :1996(1) Crimes 604 : 1996(36) DRJ 527 : 1997(1) CCR 18as follows :
"In the State of Rajasthan v. Daulat Ram, 1980, C.C. Cases 83 (S.C), the Supreme Court observed that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout. Unfortunately, this warning seems to have fallen on deaf ears at least as far as this case is concerned.
3.Does the evidence as noticed above satisfy the requirement highlighted by the Supreme Court in Daulat Ram's case? The answer, to my mind, has necessarily to be in the negative.
4.The parcels were allegedly sealed at the spot by the Investigating Officer and if the Moharer Malkhana is to be believed the same were deposited with him by the said officer. However, the Investigating Officer no where says so. In any case, even if it be taken that the parcels were actually deposited by him, was it not for him to assure the Court that so long as they had remained in his possession they had not been tampered with? This, however, is not the end of the matter. The Investigating Officer nowhere says that he had filled the C.F.S.L. form nor is there anything, either in his statement or in the statement of the Moharer Malkhana or even in the entry made in the Register, that any such form was ever deposited. The Constable who took the sample parcel also no where speaks of his having deposited any such form with the C.F.S.L. There are judgments of this court in which it has been held that absence of such evidence would be fatal to the prosecution. Reference, in this connection may be made to Chameli Devi v. State, 1993 JCC 293, Mool Chand v. State, 1993 (2) Delhi Lawyer 14, Anoop Joshi v. State, 1992 (2) CC Cases 314, _____________________________________________________________________________ State Vs. Ramesh FIR No.651/2020 Page No. 16 of 17 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.04.07 16:57:58 +0500 Jagdish Prasad v. State, 55(1994) DLT 315 and Munni Lal v. The State, 1994 IV AD (Delhi) 1099.
5.Last, but not the least, the report of the C.F.S.L. itself, the relevant portion of which has already been reproduced above, cannot be considered to be such as to inspire the confidence of the Court with regard to the seals on the sample parcel. As would be apparent though it does show that the parcel received was having " the seal impression as per specimen enclosed intact" we are not told as to what was the "specimen enclosed". This further takes away the sting from the prosecution version".
19. Similarly, in Chandra Wati v. State (Delhi) : 1991(44) DLT 31 : 1991 JCC 508 it was also held by Hon'ble Delhi High Court that the prosecution has to bring on record the link evidence to show that the sample of the recovery alleged to have been made by the police witness from the accused was analysed in the CFSL without it being tampered with by any one, failure of which is a ground in favour of the accused.
20. When considered cumulatively, these factors show that a lot of gaps and crevices exist in its version, and the benefit of this accrues to the accused Ramesh who thus stands acquitted of the offence punishable under section 33 Delhi excise Act.
Pronounced in open court on 07.04.2026 in presence of accused person.
This judgment contains 17 pages and each page has been signed by the undersigned.
(BHARTI BENIWAL) Digitally signed
JUDICIAL MAGISTRATE FIRST CLASS 05 BHARTI
by BHARTI
BENIWAL
BENIWAL Date:
(NORTH), ROHINI-07.04.2026 2026.04.07
16:58:05 +0500
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