Delhi District Court
State vs Sandeep @Chintu on 24 February, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
SANDEEP @ CHINTU
CASE No. 4233/2017
FIR No. 728/2015
P.S. - Khyala
U/S- 33/38 Delhi Excise Act,
2009
1. Date of commission of offence: 12.11.2015
2. Name of the Complainant : HC Sudershan Kumar
3. Name of the accused,
and his parentage and residence : Sandeep @ Chintu S/o Late
Sh. Amar Singh R/o B-3/17,
12.5 Yard, Raghubir Nagar,
Delhi
4. Date when judgment : 11.02.2025
was reserved
5. Date when Judgment : 24.02.2025
was pronounced
6. Offence Complained of : Section 33/38 of Delhi
or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted
FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 12.11.2015,
at about 06:15 PM at 912 Bus Stand, B-3, 12.5 Yards, Raghubir Nagar, Delhi within the jurisdiction of Police Station - Khyala, accused Sandeep @ chintu was found in possession of one plastic katta, containing 48 quarter bottles of 'Impact Grain Whiskey for sale in Haryana only (180 ml)' without any license, permit or pass and in contravention of the Delhi Excise Act, 2009. Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 30.05.2017 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and issued summons to the accused on the same date. Copy of the chargesheet in compliance with Section 207 CrPC was supplied on 04.01.2018.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 04.01.2018 to which he pleaded not guilty and claimed trial. On 24.11.2018, proceedings u/s 294 CrPC were also conducted wherein the accused admitted copy of FIR No.728/15 dated 12.11.2015, endorsement on rukka, DD No.37 B dated 12.11015, previous involvement report, report of chemical examiner dated 05.01.2016, entry in register no.19, RC No.240/21/15 dated 15.12.2015.
FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 2
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 05 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examination- cross-
witnesses Evidence. in-chief. examination
PW-1 HC Noor (i) Seizure 01.08.2018 18.11.2024
Singh memo -
Ex.PW1/A
(ii) Form
M-29 -
Ex.PW1/B
(iii) Seal
handing over
memo -
Ex.PW1/C
(iv) Rukka/
tehrir -
Ex.PW1/D
(v) Site plan
- Ex.PW1/R
PW-2 ASI Amrit NIL 24.01.2019 24.01.2019
Kumar
PW-3 Retired ASI (i) Arrest 30.11.2022 30.11.2022
Dilip Singh memo -
Ex.PW3/A
(ii) Personal
search memo
FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 3
- Ex.PW3/B
PW-3 SI Raj Kumar (i) 08.05.2023 08.05.2023
(renumbered Confiscation
as noted order
below as alongwith
PW-5) the
photograph
of the case
property -
Ex.P1 (colly)
(ii) Case
property -
Ex.P2
PW-4 ASI Ravinder NIL 14.10.2023 14.10.2023
It is noted that PW Retired ASI Dilip Singh and SI Raj Kumar were both examined separately but inadvertently given the same serial number i.e. PW-3. For sake of convenience, SI Raj Kumar shall be referred as PW-5 in this judgment.
2.2 PW-1 was HC Noor Singh who deposed that on 12.11.2015, he was posted at PS Khyala as HC. On that day he was deputed to perform patrolling duty within the jurisdiction of PS Khyala and he left the police station alongwith Ct. Raj Kumar and Ct. Ravinder at about 5:00 p.m. During patrolling duty, when he reached at about 6:15 p.m. near N-Block Gurudwara Raghubir Nagar, they saw that one person was coming from the side of bus stand bearing no.912, having in his possession one sack white FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 4 colour. On suspicion, they moved towards that person but on seeing the police party he moved away however he was apprehended after chasing him for 10-15 feet. The person was asked about his name and address to which he disclosed his name as Sandeep @ Chintu. The accused was inquired about the sack but he did not pay attention and stated that he had household articles in the said sack. But on suspicion, the sack was taken out and put on the road. The same was opened and found containing one carton which was opened and found containing 48 quarter bottles of 'Impact Grain Whiskey for sale in Haryana only'. On this, PW-1 requested 4-5 passersby to join the investigation, but none of them agreed and left the spot without disclosing their names and addresses. Due to paucity of time, notice could not be served to them. Afterwards, all the quarter bottles were taken out from the carton and the same were found intact. Out of 48 quarter bottles, one quarter bottle was taken out as sample and the remaining 47 quarter bottles were placed in the same carton. The sample bottle was wrapped with a white cloth and the same was sealed with the seal of 'NS'.
The remaining quarter bottles which were placed in the same sack were also wrapped with a white cloth and sealed with the seal of 'NS'. The said carton was placed in the same sack and the same was also sealed with the seal of 'NS'. Seal after use was handed over to Ct. Ravinder. The recovered quarter bottles were seized vide seizure memo. Form M-29 was filled and the handing over memo of the seal was prepared at the spot. After completion of aforesaid proceedings, PW-1 prepared rukka/tehrir and the same was handed over to Ct. Ravinder for the registration of FIR. After the registration of FIR, Ct. Ravinder, alongwith HC Dilip returned to the spot.
FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 5 As the investigation was further entrusted to HC Dilip, all the documents which were prepared by PW-1, alongwith the case property, were handed over to him. Afterwards, HC Dilip prepared the site plan at the instance of PW-1. Thereafter, statement of PW-1 was recorded by the IO at the spot.
2.3 PW- 2 was ASI Amrit Kumar who deposed that on 25.02.2016, he was posted at PS Khyala as HC and the present case file was entrusted to him by the concerned MHC(R) for further proceedings. The entire proceeding was already completed by the initial IOs namely HC Noor Singh and HC Dilip Singh and the present case charge sheet was filed by PW-2 against the accused namely Sandeep @ Chintu.
2.4 PW-3 was Retired ASI Dilip Singh who deposed that on 12.11.2015, he was posted at PS Khyala as HC. The investigation of the present case was entrusted to him after the registration of FIR and thereupon, he alongwith Ct. Ravinder went to the place of recovery near 912 Bus Stand Raghbir Nagar Khyala where HC Noor Singh was already present alongwith Ct Raj Kumar and the accused namely Sandeep @ Chintu was apprehended. The accused was found in possession of illicit liquor which was already taken into possession and sealed by the IO HC Noor Singh. At the spot, PW-3 prepared the site plan and the accused was arrested and personally searched vide memos. The disclosure statement of the accused was recorded by PW-3 and the statement of Ct. Ravinder, Ct. Raj Kumar and HC Noor Singh were recorded by PW-3 u/s 161 CrPC and after completion of investigation, the accused alongwith the case property FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 6 were taken to police station, where the case property was deposited with MHC(M) and the accused was put behind bars after getting his medical examination conducted. During investigation, the sealed samples were sent to Excise Lab for analysis and on receipt of result, the same was placed on record. Thereafter, the investigation was further marked to IO ASI Amrit Kumar.
2.5 PW-5 (Recorded as PW-3 on 08.05.2023) was SI Raj Kumar who deposed that on 12.11.2015 he was posted at PS Khyala as constable and was on duty on the said day when he alongwith Ct. Ravinder and HC Noor Singh were performing area patrolling at about 05.00 pm. During the patrolling at around 06.15 pm near N-Block Gurdwara Raghubir Nagar, they saw one person coming from the side of the bus stand bearing no.912 carrying one plastic katta. On suspicion, the aforesaid person was apprehended after chasing him and he was asked about the aforesaid plastic katta. However, he failed to give any satisfactory answer. On further suspicion, the aforesaid plastic katta was checked and found containing one carton which contained 48 quarter bottles with illicit liquor bearing label 'Impact Grain Whisky for sale in Haryana 180 ml'. On being asked, the said person revealed his name as Chintu and they asked 4-5 public persons to join the proceedings in the present case but none of them agreed and went away by stating their reasonable excuses. Thereafter, IO took one representative sample from the abovesaid carton box. The aforesaid sample bottle was sealed and seized with the help of white cloth from its opening and sealed with the seal of 'NS'. Remaining quarter bottles were put in the FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 7 same respective cartons and further put in the respective plastic katta. Thereafter, form M-29 was prepared by IO at the spot and after that, the seal was handed over to Ct. Ravinder. Thereafter, aforementioned liquor was seized vide seizure memo and tehrir was prepared by IO and the same was handed over to Ct. Ravinder for registration of FIR. After sometime, Ct. Ravinder, alongwith HC Dilip came to the spot. IO handed over the custody of the case property as well as the accused Chintu to HC Dilip, alongwith the Form No.M-29 and seizure memo. Thereafter, HC Dilip put down the FIR Number on the seizure memo and Form M-29. HC Dilip prepared the site plan. HC Dilip recorded statement of PW-5.
2.6 PW-4 was ASI Ravinder who deposed that on 12.11.2015, he was posted at PS Khyala as constable. On that day, he alongwith Constable Raj Kumar and HC Noor Singh were on area patrolling duty within the area of the police station. At around 06.15 pm, when they reached near N-Block Gurudwara Raghubir Nagar, they saw one person coming from the side of Bus Stand No.912 with a plastic sack on his shoulder. Upon seeing them, the said person tried to run away, PW-4, alongwith Ct. Raj Kumar and HC Noor, apprehended the said person. Upon cursory inquiry, his name was revealed as Sandeep @ Chintu. Upon checking the plastic sack, 48 quarter bottles of make 'Impact Grain Whisky for sale in Haryana only' were recovered. IO kept one bottle as sample and the remaining bottles were kept back in the plastic sack and a pullinda was prepared. The pullinda was sealed with the seal of 'NS'. The seizure memo of the same was prepared. IO filled Form M-29. The seal after use was handed over to PW-4. IO FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 8 prepared the tehrir and handed over the same to PW-4 for registration of FIR. PW-4 went to the police station and got the FIR registered and returned back to spot alongwith copy of FIR and original tehrir. HC Daleep Singh appeared at the spot as further investigation of the case was handed over to him. PW-4 handed over the copy of FIR and original tehrir to HC Daleep. HC Noor Singh handed over the accused, sealed case property and the documents to HC Daleep. HC Daleep prepared site plan at the instance of HC Noor. HC Daleep then recorded the statement of HC Noor. Thereafter, HC Noor left the spot. After the inquiry, the accused was arrested vide arrest memo. Personal search of accused was conducted vide memo. Disclosure statement of accused was recorded. Thereafter, accused and case property were taken to police station. Case property was deposited in the malkhana. Accused was sent for medical examination and thereafter he was locked up.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 After the prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded separately on 05.12.2023 wherein he denied the allegations and tendered explanation that he had been falsely implicated and nothing was recovered from his possession. He opted not to lead any DE in his defence.
FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 9
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused person was apprehended with the case property which was recovered from him and on a combined reading of prosecution witnesses' testimony, offence under section 33/38 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused person.
4.2 On the other hand, Ld. Counsel for the accused person has argued that there is no legally admissible evidence against the accused person and that the accused person has been falsely implicated in the present case. He submitted that no videography, photography, examination of any public witness was done hence the recovery was doubtful. He argued that prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government.
5.2 Section 33 of Delhi Excise Act, 2009 states that:
'whoever, in contravention of provisions 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 FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 10 removes any intoxicant;
(b) constructs or works 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 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 with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees'.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
'whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees'.
FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 11 5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, several doubts have been created over the factum of alleged recovery from the accused. To begin with, it is abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities.
It is not the case of the prosecution that no public witnesses were available and it is stated by PW SI Raj Kumar that the area was residential and neighbours were asked to join the investigation but no formal notice was served on them.
5.5 When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of provisions of Cr.P.C and IPC as noted below.
Section 100(4) Cr.P.C states that,"before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 12 search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or (b) in the prevention of suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property".
Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 13 hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
5.6 The importance of getting independent witnesses to join the investigation has been laid out by the superior courts in a catena of judgments. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, the Hon'ble High Court of Punjab and Haryana observed that such explanations that public persons refused to join the proceedings are FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 14 unreliable. Moreover, the Hon'ble Supreme Court of India also noted in the case of Pradeep Narayana Vs. State of Maharashtra AIR 1995 SE 930 that failure of the police to get persons from the locality to join the investigation during search creates doubt about its fairness, benefit of which has to be given to the accused. In the present matter, hence, the chances of false implication and planted recovery, as alleged by the defence, cannot be ruled out.
5.7 There are other discrepancies casting a doubt over the prosecution chain of events. For instance, PW-1 i.e. HC Noor Singh was on patrolling with Ct. Raj Kumar and Ct. Ravinder and as per his cross-examination, they had left together at around 05.30 pm. All the witnesses failed to give any account of the DD entries vide which they had left for patrolling and which brought them to the spot of the incident. Further as per recovery witnesses, Ct. Ravinder had taken the rukka to the police station and brought back HC Dilip Singh alongwith him. However in his own testimony, PW-4 i.e. ASI Ravinder has made no mention of HC Dilip Singh accompanying him to the spot of the incident from the police station after getting the FIR registered. The witnesses also claimed that the source of light for the proceedings was a street lamp but admitted that no such street lamp had been shown on the site plan. Additionally, while PW SI Raj Kumar stated that case property was taken to the police station by the IO in his hand, PW ASI Ravinder stated that it had been taken to the police station in a rickshaw. These discrepancies were never resolved and it was admitted that the name of such rickshaw puller was not recorded anywhere, FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 15 neither was he examined by the IO.
5.8 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. As per the prosecution evidence, seal after use was handed over to Ct. Ravinder however it is not manifest whether the seal was deposited with the MHC (M) Police Station Khyala as PW-4 has admitted that the seal was returned to the police station but he did not remember any memo recorded while returning the seal. Moreover (as per testimony given by SI Raj Kumar, the seal was already handed over to Ct. Ravinder by the IO before the remaining liquor was seized, hence, it appears that the remainder left after drawing of the sample was never sealed as per the testimony of SI Raj Kumar. Tampering with the case property as well as the seal cannot be ruled out in such a case as the same remained with officials of the same police station as the IO himself. No independent witness was examined with respect to the same and no photography or videography was done during recovery, sealing or seizure proceedings. In a case where only police witnesses are available, it becomes incumbent upon such officials to comply with all procedural requirements and failure of the same shall work in the favour of the accused.
5.9 Further, PW-1, PW-3 and PW-5 all admitted that the seizure memo had been prepared in one go before registration of the FIR and when enquired, PW-4 stated that the FIR number was not available at the time of preparation of seizure memo and he could not give any explanation about FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 16 how the FIR number appeared on the seizure memo. Upon perusal of documents, the seizure memo shows that the FIR number is mentioned in the same handwriting as the rest of the contents of the document. As noted above, no addition or alteration was made to the document and it was ostensibly prepared before the registration of the FIR, leading to the presumption that either the witnesses have deposed falsely and alterations were made or the documents were prepared, as suggested by the defence, at the police station after planting the recovery.
5.10 Most importantly, the very existence of violation of the excise policy has been brought into question as only one quarter bottle among those seized was sent for chemical analysis and found to contain alcohol. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been proved by the prosecution. As admitted by the prosecution witnesses, neither was the batch number of the remaining bottles noted to correlate them with the sample bottle. Now, since the State has only found one bottle containing 180 ml alcohol, allegedly recovered from the accused, an offence under Section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out, as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. No batch number of the remaining bottles corresponding to the sample were noted to indicate similarity of contents.
5.11 The cardinal principle of law that the prosecution has to prove its case beyond all reasonable doubts, remains the dictating factor. The FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 17 standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubt. It is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is apparent that the case of the prosecution suffers from several glaring loopholes and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to convict the accused merely on the basis of testimony of the police officials. Hence, accused Sandeep @ Chintu S/o Late Sh. Amar Singh R/o B-3/17, 12.5 Yard, Raghubir Nagar, Delhi is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance ANNOUNCED IN THE OPEN SUKRITI Digitally signed by SUKRITI SINGH COURT ON 24.02.2025 SINGH Date: 2025.03.03 16:59:29 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 18 pages, all signed by the presiding officer SUKRITI Digitally signed by SUKRITI SINGH SINGH Date: 2025.03.03 16:59:33 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 728/2015 State Vs Sandeep @ Chintu U/s 33/38 Delhi Excise Act 18