Delhi District Court
State vs Amar Singh on 2 May, 2025
IN THE COURT OF SH. ANKIT KARAN SINGH
JUDICIAL MAGISTRATE FIRST CLASS-08, WEST
TIS HAZARI COURTS, DELHI
CNR No. DLWT02-011494-2021
CIS No. 7209/21
State Vs. Amar Singh
FIR No. 821/20
PS. Ranhola
U/s. 33/38 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 31.08.2020
2) The name of the complainant : Ct. Sandeep
3) The name & parentage of accused : Amar Singh S/o Babu Lal,
R/o H.no. 14, Ranhola Exten., 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 : 02.05.2025
Date of Institution : 09.08.2021
Final Arguments heard on : 02.05.2025
Judgment reserved on : 02.05.2025
Judgment announced on : 02.05.2025
State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 1/11
JUDGMENT
1) The case of the prosecution against the accused is that on 31.08.2020 at
about 10.00 PM at Ganda Nala, Ranhola, Mundka, Delhi, within the jurisdiction of PS Ranhola, accused was found with 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 three witnesses. Accused admitted FIR no. 821/20 is Ex. A1, Certificate U/s 65B of Indian Evidence Act is Ex. A2, GD no.38A dated 31.08.2020 is Ex. A3, chemical examiner report is Ex. A4 and Statement of Ct. Vijender 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 him. 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) PW1 Ct. Sandeep deposed that on 31.08.2020, PW1 was posted at PS Ranhola as Constable. It is further stated by PW1 that on that day, PW1 alongwith Ct. Deepak(on official motorcycle), Ct. Mayank and Ct. Rupa Ram (on the second official motorcycle) were on highway patrolling duty near Ganda Nala, Ranhola Mundka Road. It is further stated by PW1 that on that day, at about, 09.45 am while patrolling when they reached there, they saw State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 2/11 one person carrying one plastic sack in his right hand. It is further stated by PW1 that on seeing them, accused turned back and PW1 that person and upon enquiry, accused told his name as Amar Singh. It is further stated by PW1 that PW1 asked him to keep the said plastic sack on ground and when PW1 checked the said plastic sack, it was found to be containing some illicit liquor.
It is further stated by PW1 that thereafter, Ct. Mayank informed the Duty Officer present at the PS and after some time, the 10/HC Birbal reached the spot and PW1 handed over the custody of accused and case property to him for further course of action. It is further stated by PW1 that IO recorded his statement and prepared the tehrir and prepared the rukka and sent to Ct. Mayank to PS for getting the FIR registered and after some time Ct. Mayank at the spot and handed over the copy of FIR and original tehrir to the 10. It is further stated by PW1 that thereafter, 10 checked the said plastic sack and found it to be containing total of 48 illicit liquor quarter bottles of the make of Santara Masaledar Desi Sharab for sale in Haryana only (180 ml each) and 48 illicit liquor glass quarter bottles of the make of Episode Gold Whisky for sale in Haryana only (180 ml each) and 10 took out one quarter bottle from each brand as a sample and gave them serial no. 1 and 2 and sealed them with the seal of SD and kept back the remaining bottles in the said plastic sack and closed its mouth with the help of a white cloth and sealed it with the seal of SD and gave it serial no. 3. It is further stated by PW1 that IO prepared form M-29. It is further stated by PW1 that the seal was handed over to me after use. It is further stated by PW1 that IO prepared the site plan at his instance which is now exhibited as Ex. PW-1/B. It is further stated by PW1 that IO seized the case property in my presence vide seizure memo Ex. PW-1/C bearing my signatures at point A. It is further stated by PW1 that 10 carried out the personal search of accused vide memo Ex. PW-1/D. It is further stated by PW1 that 10 arrested the accused vide memo Ex. PW-1/E. It is further State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 3/11 stated by PW1 that IO recorded disclosure statement of accused vide memo Ex. PW-1/F. It is further stated by PW1 that thereafter, PW1 alongwith 10 and Ct. Mayank came back to the PS along with the accused and the case property and the case property was deposited in the malkhana of PS by the 10. It is further stated by PW1 that PW1 handed over the custody of the accused to Ct. Bhagirath on the direction 10 and thereafter, PW1 was relieved from the investigation. It is further stated by PW1 that 10 recorded his supplementary statement at the PS in the evening.
6.2) PW2 ASI Birbal deposed that on 31.08.2020, PW2 was posted at PS Ranhola as Head Constable. It is further stated by PW2 that on that day, PW2 received one DD number 38A vide which PW2 was informed that Ct. Sandeep has apprehended the accused with illicit liquor. It is further stated by PW2 that thereafter, PW2 reached the spot i.e. near Ganda Nala, Ranhola Mundka Road and met with Ct. Deepak, Ct. Sandeep Ct. Mayank and Ct. Roopa Ram. It is further stated by PW2 that thereafter, Ct. Saneep handed over the custody of accused and illicit liquor for further course of investigation. It is further stated by PW2 that thereafter, PW2 checked the said plastic sack and found it to be containing total of 48 illicit liquor quarter bottles of the make of Santara Masaledar Desi Sharab for sale in Haryana only (180 ml each) and 48 illicit liquor glass quarter bottles of the make of Episode Gold Whisky for sale in Haryana only (180 ml each) and IO took out one quarter bottle from each brand as a sample and gave them serial no. 1 and 2 and sealed them with the seal of SD and kept back the remaining bottles in the said plastic sack and enclosed its mouth with the help of a white cloth and sealed it with the seal of SD and gave it serial no. 3. It is further stated by PW2 that PW2 filed up M-29 form which is Ex. PW-2/A and the seal was handed over to Ct. Sandeep after use. It is further stated by PW2 that PW2 seized the case property in his presence vide seizure memo already Ex. PW-
State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 4/11 1/C. It is further stated by PW2 that PW2 recorded the statement of Ct. Sandeep which is already Ex.PW-1/A and prepared the tehrir which is now Ex. PW-2/B and prepared the rukka and sent to Ct. Mayank to PS for getting the FIR registered and after some time CL Mayank at the spot and handed over the copy of FIR and original tehrir to PW2. It is further stated by PW2 that PW2 prepared the site plan at the instance of Ct. Sandeep which is already exhibited as Ex. PW-1/B. It is further stated by PW2 that PW2 carried out the personal search of accused vide memo already Ex. PW-1/D. It is further stated by PW2 that PW2 arrested the accused vide memo already Ex. PW-1/E. It is further stated by PW2 that PW2 recorded disclosure statement of accused vide memo already Ex. PW-1/F. It is further stated by PW2 that thereafter, PW2 alongwith Ct. Deepak, Ct. Sandeep Ct. Mayank and Ct. Roopa Ram came back to the PS along with the accused and the case property and the case property was deposited in ne malkhana of PS by PW2. It is further stated by PW2 that Ct. Sandeep handed over the custody of the accused to Ct. Bhagirath on his direction. It is further stated by PW2 that the case property is already exhibited in the testimony of PW-1. 6.3) PW3 Ct. Mayank deposed that on 31.08.2020, PW3 was posted at PS Ranhola as Constable. It is further stated by PW3 that on that day, PW3 alongwith Ct Rupa Ram (on official motorcycle), Ct. Sandeep and Ct. Deepak (on the second official motorcycle) were on highway patrolling duty near Ganda Nala, Ranhola Mundka Road. It is further stated by PW3 that on that day, at about, 09.45 am while patrolling when they reached there, they saw one person carrying one plastic sack in his right hand. It is further stated by PW3 that on seeing them, accused turned back and PW3 that person and upon inquiry, accused told his name as Amar Singh. It is further stated by PW3 that Ct. Deepak asked him to keep the said plastic sack on ground and when he checked the said plastie sack, it was found to be containing some illicit liquor.
State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 5/11 It is further stated by PW3 that thereafter, PW3 informed the Duty Officer present at the PS and after some time, the IO/HC Birbal reached the spot and Ct. Deepak handed over the custody of accused and case property to him for further course of action. It is further stated by PW3 that IO recorded his statement and prepared the tehrir and prepared the rukka and sent to PW3 PS for getting the FIR registered and after some time PW3 came back at the spot and handed over the copy of FIR and original tehrir to the IO. It is further stated by PW3 that thereafter, IO checked the said plastic sack and found it to be containing total of 48 illicit liquor quarter bottles of the make of Santara Masaledar Desi Sharab for sale in Haryana only (180 ml each) and 48 illicit liquor glass quarter bottles of the make of Episode Gold Whisky for sale in Haryana only (180 ml each) and 10 took out one quarter bottle from each brand as a sample and gave them serial no. 1 and 2 and sealed them with the seal of SD and kept back the remaining bottles in the said plastic sack and closed its mouth with the help of a white cloth and sealed it with the seal of SD and gave it serial no. 3. It is further stated by PW3 that 10 prepared form M-29. It is further stated by PW3 that the seal was handed over to Ct. Deepak after use and said process of seizure and filling of M-29 form had taken place prior to preparing the rukka. It is further stated by PW3 that IO prepared the site plan which is already exhibited as Ex. PW-1/B. It is further stated by PW3 that IO seized the case property in his presence vide seizure memo already Ex. PW-1/C. It is further stated by PW3 that 10 carried out the personal search of accused vide memo already Ex. PW-1/D. It is further stated by PW3 that 10 arrested the accused vide memo already Ex. PW-1/E. It is further stated by PW3 that 10 recorded disclosure statement of accused vide memo already Ex. PW-1/F. It is further stated by PW3 that thereafter, PW3 alongwith 10 and Ct. Deepak came back to the PS along with the accused and the case property and the case property was deposited in the malkhana of PS State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 6/11 by the IO. It is further stated by PW3 that Ct. Deepak handed over the custody of the accused to Ct. Bhagirath on the direction 10. It is further stated by PW3 that 10 recorded his statement U/s 161 Cr. PC. It is further stated by PW3 that PW3 can identify the accused if shown to PW3. It is further stated by PW3 that the case property is already produced in the testimony of PW-1.
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-3 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 State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 7/11 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:
"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 State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 8/11 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 01.10.2020 while the same was seized on 31.08.2020. The entire paper formalities were completed in 31.08.2020 only. When the entire codal formalities were completed on 31.08.2020 than the delay of more than one month 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 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 State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 9/11 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 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).
State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 10/11
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 Amar Singh stands acquitted of charged offences. 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
Date: 2025.05.02
SINGH 16:58:41 +0530
Announced in the open court (ANKIT KARAN SINGH)
on 02.05.2025 JMIC-08,West District,
Tis Hazari Courts, Delhi.
State Vs. Amar Singh FIR No. 821/20 U/s. 33/38 Delhi Excise Act 11/11