Delhi District Court
State vs Suraj on 14 July, 2025
IN THE COURT OF SH. ANKIT KARAN SINGH
JUDICIAL MAGISTRATE FIRST CLASS-08, WEST
TIS HAZARI COURTS, DELHI
CNR No. DLWT02-009522-2020
CIS No. 7547/20
State Vs. Suraj
FIR No. 624/2019
PS. Ranhola
U/s. 33/38 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 06.10.2019
2) The name of the complainant : ASI Babulal
3) The name & parentage of accused : Suraj S/o Gangaram
R/o A-14, Gali no. 22, Chanchal Park,
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 : 14.07.2025
Date of Institution : 15.09.2020
Final Arguments heard on : 14.07.2025
Judgment reserved on : 14.07.2025
Judgment announced on : 14.07.2025
State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 1/8
JUDGMENT
1) The case of the prosecution against the accused is that on 06.10.2019 at
about 7.10 PM at Gali no.22, Main Som Bazar Road, Chanchal Park, Delhi, within the jurisdiction of PS Ranhola, accused was found in possession of illicit liquor as detailed in seizure memo Mark 'A' without any permit or licence and thereby accused charged with an offence punishable under Section 33/38 Delhi Excise Act
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.624/19 is Ex. A1, Certificate U/s 65B of Indian Evidence Act is Ex. A2, DD no. 35B dated 06.10.2019 is Ex. A3, Excise Result is Ex. A4 and Statement of Ct. Roopram recorded U/s 161 CrPC is 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 Ct Harish deposed that on 06.10.2019, PW1 was posted at PS Ranhola as a Contable. On that day, PW1 was on patroling duty in the area of beat no.10. At about 7.10pm, when PW1 reached near Gali no.22, Chanchal Park, Gurdayal Vihar, Delhi, where PW1 saw one person carrying a white plastic sack on his shouder. Upon inquiry from him, accused told his name as Suraj. Upon checking State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 2/8 the white plastic sack it was found to be containing illicit liquor quarter bottles.
Thereafter, PW1 informed the duty officer present in the police station and after some time ASI Babu Lal and HC Jaibhagwan reached the spot and PW1 handed over the accused and case property to him. ASI Babu Lal checked the plastic sack which was found to be containing 86 quarter bottles of illicit liquor of the make of Asli Santra Masalader Desi Sharab for sale in Haryana only (180 ml ). ASI Babu Lal took out one bottle as a sample and selaed it with the sela of BLY. The remaining bottles were kept back in the white plastic sack and its mouth was closed with the help of white cloth and it was sealed with the seal of BLY. ASI Babu Lal filled up Form M-29 and the seal was handed over to PW1 after its use. ASI Babulal seized the case property i.e. illicit liquor quarter bottles vide sizure memo exhibited as EX-PW1/C. ASI Babu Lal recorded my statement and prepared the Tehrir which is now exhibited as EX-PW1/A and sent PW1 to the police station for getting the FIR registered. After some time, PW1 came back to the spot along with the original Tehrir and copy of FIR and handed over the same to HC Jaibhagwan. Thereafter, HC Jaibhagwan/IO prepared the site plan at his instance which is exhibited as EX- PW1/B. IO carried out the personal search of the accused vide search memo exhibited as EX-PW1/D. IO arrested the accused vide arrest memo exhibited as EX- PW1/E. IO recorded the disclosure statement of accused vide memo exhibited as EX- PW1/F. Thereafter, they all came to the police station and deposited the case property in Malkhana of the PS. 6.2) PW-2 SI Babu Lal deposed that on 06.10.2019, PW2 was posted at PS Ranhola as an ASI. On thay day, PW2 was on patroling duty with Ct. Harish vide DD No.35-B in the area of Beat no.10, Chanchal Park, Delhi. PW2 left for some personal work and after some time Ct. Harish informed PW2 that Ct. Harish has apprehended one person with illicit liquor at Corner of Gali no.22, Som Bazar Road, Chanchal Park, Delhi. PW2 reached the spot and Ct. Harish handed over the accused and case property to PW2. PW2 aksed some public persons to join the investigation but nobody agreed for the same. PW2 checked the case property i.e. Plastic Sack and found it to be containing 86 quarter bottles of Asli Santra State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 3/8 Masaledar Desi Sharab for sale in Haryana only ( 180 ml ). PW2 took out one bottle as a sample and closed its mouth with the help of a white cloth and sealed it with the seal of BLY. The remaining bottles were kept back in the plastic sack and it was sealed with seal of BLY. PW2 filled up form M-29. PW2 prepared the seizure memo already exhibited as EX-PW1/C. PW2 recorded the statement of Ct. Harish and preapred the Tehrir already exhibited as EX-PW1/A on both the pages and sent Ct. Harish to the PS for getting the FIR registered. After some time Ct. Harish along with HC Jaibhagwan reached the spot with the copy of FIR and original Tehrir. PW2 handed over custody of accused and seal of case property to the IO and IO recorded his statement. IO prepared the site plan at their instance which is already exhibited as EX-PW1/B. IO carried out the persoanl search of the accused vide memo already exhibited as EX-PW1/D. IO arrested the accused vide memo already exhibited as EX-PW1/E. IO recorded the disclosure statement of accused vide memo already exhibited as EX-PW1/F.
7) 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.
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 State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 4/8 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 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:
State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 5/8 "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 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/C 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 01.11.2019 while the same was seized on 06.10.2019. The entire paper formalities were completed in 06.10.2019 only. When the entire codal formalities were completed on 06.10.2019 than the delay of 25 days in sending the exhibits for chemical examination is beyond comprehension. Again the police official having the possession State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 6/8 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 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 State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 7/8 with regard to the guilt of the accused the accused is entitled 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 Suraj stands acquitted in the present case. 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: 2025.07.10 17:31:45
+0530
Announced in the open court (ANKIT KARAN SINGH)
on 14.07.2025 JMIC-08,West District,
Tis Hazari Courts, Delhi.
State Vs. Suraj FIR No. 624/19 U/s. 33/38 Delhi Excise Act 8/8