Delhi District Court
State vs Rahul Yadav on 10 July, 2025
IN THE COURT OF SH. ANIMESH KUMAR, JMFC-02,
PATIALA HOUSE COURTS/NEW DELHI.
State Vs. Rahul Yadav
DD No. 40A dated 25.09.2019
PS: Vasant Kunj North
U/S: 28 r/w 112 Delhi Police Act
ID number of the case : 9122/2019
Date of commission of offence : 25.09.2019
Date of institution of the case : 14.10.2019
Name of the complainant : HC Mahender Kumar
Name of accused and address : Rahul Yadav, S/o Sh. Lallan Singh Yadav,
R/o H. No. 133, Rajpur Khurd, Goswami
Mohalla, Delhi.
Offence complained of or proved : 28 r/w 112 Delhi Police Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 10.07.2025
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BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, case of the prosecution is that the accused is the manager of a sweet shop namely "Gopala Produce Private Limited" situated at B-10 Market, Vasant Kunj, New Delhi. On 25.09.2019 at about 5:30 PM, during the routine checking, it was found out that the said shop was being functioning without having / holding any eating house license which was mandatory under the Delhi Police Act. Therefore, the kalandara for the offence punishable u/s 28 r/w 112 Delhi Police Act (hereinafter referred as the "DP Act") was made against the accused.
2. Upon completion of the investigation, kalandara was filed and the accused was consequently summoned. Thereafter, notice u/s 251 Cr.P.C was served upon the accused for the offence punishable u/s 28 r/w 112 of the DP Act to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined two witnesses. Both the witnesses examined by the prosecution were the police officials. PW-1 HC Mahender was the complainant and eye witness of the present case. He deposed that on 25.09.2019 at about 5:30 PM, he along with ASI Hira Lal was on patrolling duty and when they reached in B-10 Market, Vasant Kunj, New Delhi and went to sweet shop of Gopala, the accused met them who introduced himself as the manager of the shop. ASI Hira Lal had asked for the license from the accused if he had applied for the license but he failed to produce any such document. Page 2 of 9 Thereafter, IO sent the information to SHO, PS Vasant Kunj North. IO prepared challan u/s 28 r/w 112 DP Act Ex. PW-1/A.
4. PW-1 was duly cross-examined by the Ld. Counsel for the accused. In the cross-examination, he stated that he was not having any information that the accused was running a shop without eating license. He also stated that he did not visit the said shop of the accused prior to 25.09.2019. He also stated that there was no table or chair available inside the shop for eating food. He also stated that he could not tell if the sweets were being prepared inside the shop or not. He also stated that there were counters and sweets were kept in the counter. He also stated that he did not get the photographs of the shop clicked. He further stated that he did not find any customers eating inside the shop. He also stated that the public persons were purchasing sweets. He also stated that the IO did not collect any document from the accused pertaining to his appointment as Manager in the shop. He further stated that the documents pertaining to other licenses were displayed in the shop. He denied the suggestion that the accused was not required to get eating house license for the said shop. He also denied the suggestion that the accused was falsely implicated in the present case.
5. PW-2 ASI Harilal was the investigating officer of the present case. He deposed that on 25.09.2019, he along with HC Mahender were on patrolling duty. At about 5:30 PM, they reached in B-10 market, Vasant Page 3 of 9 Kunj, New Delhi and went to the shop of Gopala where the accused was present. He could not identify the accused due to lapse of time. He also stated that the accused was asked about the license for running the said sweet shop but he did not furnish any license. Thereafter, kalandara u/s 28 r/w 112 of the DP Act Ex. PW-1/A was prepared. He could not identify the accused.
6. PW-2 was duly cross-examined by the Ld. Counsel of the accused. In the cross-examination, he stated that he did not have any information regarding the accused not having a license for running the said sweet shop. He also stated that they went to the shop of the accused on their own will as he was checking the license of the shop. He also stated that no other kalandara was prepared against any other accused. He did not remember as to whether he went to the shop before 25.09.2019. He also stated that the shop was very small which had limited tables for sitting. He also stated that the public persons were present in the said shop and they were eating sweets but he did not examine any of them. He further stated that he did not take photographs of the shop of the accused. He also stated that there was no kitchen in the shop and all the foods were packaged. He also stated that he asked the accused for eating license of the shop. He denied the suggestions given by the Ld. Counsel for the accused.
7. Statement of the accused was recorded u/s 313 Cr.PC., wherein all the Page 4 of 9 incriminating evidence was put to the accused, to which he denied the allegations and stated that he was falsely implicated in this case. He also stated that no offence was committed as there was no kitchen at his shop and there was no place wherein the people can eat inside his shop. Further, the accused examined himself as DW-1 in the defence evidence wherein he reiterated the statements made at the stage of 313 Cr.P.C. He also stated that his shop only provided for the take away option.
8. Final Arguments heard. Case file perused.
9. I have perused the record and heard the arguments. Ld. APP for the State has argued that material on record clearly points towards guilt of the accused. He has submitted that the testimony of prosecution witnesses inspires confidence and there are sufficient ground to convict the accused.
10. Per contra, Ld. Counsel for the accused has argued that there are various discrepancies in testimonies of prosecution witnesses and hence accused should be given benefit of doubt. He has further submitted that no public witness was examined by the prosecution in the present case. He also argued that no photograph of the sweet shop was taken by the investigating agency. Further, the shop was not required to take any eating license as it was not an eating house and it was only selling the sweets to the customers and was not serving sweets for consumption purpose inside the shop.
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11. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution.
12. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
13. Section 28 of the DP Act is an enabling provision which enables the Commissioner of Police to make regulations for regulating traffic and for preservation of order in public places. Section 28 (za) of the DP Act enables the Commissioner of Police to make regulations for the registration of eating houses. As per the said provision, it is mandatory for the eating houses to get registration certificate.
14. Section 2 (h) of the DP Act defines "eating house" in the following manner:
"eating house" means any place to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises by any person owning, or having any interest in, or managing, such place and includes-- (i) a refreshment room, boarding house or coffee house, or (ii) a shop where any kind of food or drink is supplied to the public for consumption in or near such shop, but does not include a place of Page 6 of 9 public entertainment;
15. Therefore, as per the DP Act, the eating house means those places where food or drink is offered to the customer for consumption purpose in the premise or near the premise. It will not include those places where food or drink is not offered for consumption purpose in or near the premise and only sells the eatables for take away purpose.
16. In the instant case, the shop of the accused will be required to take eating house license only when it can be considered as "eating house". As per the statement made by the complainant PW-1 in his cross-examination, no chairs or tables were found inside the shop of the accused. Also, as per PW-1, no persons were found eating food or sweets inside the said shop and public persons were only purchasing the sweets. Thus, the testimony of PW-1 would go against the case of the prosecution only. If the customers were not being served with sweets for consumption purpose in or near the shop then it cannot be considered as an "eating house" under the DP Act.
17. In fact, there is contradiction between PW-1 and PW-2 over the presence of tables and chairs and consumption by customer inside the shop. As per the IO, the shop of the accused has limited tables for sitting and persons were eating sweets inside the shop. This would be in direct contradiction with the statements made by the PW-1. Interestingly, no such persons who were allegedly found eating sweets inside the shop were examined. They would have been star witness of the prosecution. No efforts were Page 7 of 9 made by the IO to get their names and details. No notice in writing was given to them to join the investigating. No photography or videography of the shop was conducted by the IO.
18. Therefore, in view of the above, I find that the prosecution has miserably failed to prove the fact that the shop of the accused was an "eating house" as defined under DP Act. Since, the shop was not an "eating house", it was not required to get eating house license under section 28 of the DP Act.
19. Even otherwise, it should be noted that the accused was only an employee of the said shop working as manager. He was not the owner of the said shop. This fact was never in dispute. It is the owner of the eating house who basically runs the eating house and employees only manage the day-to-day affairs on the field. As such, employees are not required to obtain any licence nor even to ask the owner to get any licence. Thus, the employee cannot be convicted for the offence punishable u/s 28 r/w 112 of the DP Act because there is no corresponding duty in them to obtain any licence. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Rajendra Kumar Gupta Vs. Govt. Of NCT of Delhi & Anr Crl. M.C.No. 175/2013 dated 20.11.2013 wherein the Hon'ble Court while discussing the culpability of an employee for the offence punishable u/s 28 r/w 112 DP Act has interalia held the following:
"Keeping in view the fact that the petitioner is only an employee of the eating house as also in view of Page 8 of 9 the legal position enunciated above, he cannot be prosecuted under Section 28/112 of D.P. Act as he is not supposed to obtain a license for running the business of eating house."
20. Therefore, in view of the above discussions and findings, I find that the guilt of the accused could not be proved by the prosecution beyond reasonable doubts in the present case.
21. Thus the accused Rahul Yadav stands acquitted for the offence punishable u/s 28 r/w 112 DP Act.
Announced in the open court (ANIMESH KUMAR)
on 10.07.2025 JMFC-02, Patiala House Courts
New Delhi
It is certified that this judgment contains 9 pages and each page bears my signatures.
(ANIMESH KUMAR) JMFC-02, Patiala House Courts New Delhi Page 9 of 9