Delhi District Court
State vs Bhola on 23 August, 2025
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, ND.
FIR No.780/2023
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 2787/2024
State Vs. Bhola
S/o Rakesh,
R/o A-55, JJ Colony Pkt - 4, Bindapur,
Dabri, Dwarka, Delhi. ..... Accused
S. No. of the case : 2787/2024
The date of offence : 03.11.2023
The name of the complainant : Ct. Deepak
The name of the accused : Bhola
The offence complained : Section 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 23.08.2025
The date of order : 23.08.2025
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that on 03.11.2023, Ct. Deepak was posted at PS Dabri as Constable. On that day, Ct. Deepak was on patrolling duty in beat no.2. While patrolling when Ct. Deepak reached near A55, JJ Colony, Bindapur, Ct. Deepak saw accused while he was taking one plastic katta inside the house. On seeing him moving, Ct. Deepak ran towards him and stopped him, asked him what is inside the plastic katta. Upon asking, he did not give any satisfactory answer and thereafter, Ct. Deepak checked the plastic katta and found containing illicit liquor. Ct. Deepak informed about this to the DO. Thereafter, HC Sunil came to the spot.
2. An FIR bearing No. 780/2023 U/s 33 Delhi Excise Act was registered at PS Dabri against the accused. Investigation of the case FIR NO. 780/2023 State Vs. Bhola 1 Digitally signed by HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:00:58 +0530 was handed over to Investigating Officer HC Sunil who filed the chargesheet.
3. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the accused. After taking cognizance of the offence, the accused was summoned to face trial.
4. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he pleaded not guilty and claimed trial.
5. During the course of trial, the prosecution examined the following witnesses.
6. Ct. Deepak was examined as PW1. He stated thus: " On 03.11.2023, I was posted at PS Dabri as Constable. On that day, I was on patrolling duty in beat no.2. While patrolling when I reached near A55, JJ Colony, Bindapur, I saw accused while he was taking one plastic katta inside the house. On seeing him moving, I ran towards him and stopped him, asked him what is inside the plastic katta. Upon asking, he did not give any satisfactory answer and thereafter, I checked the plastic katta and found containing illicit liquor. I informed about this to the DO. Thereafter, HC Sunil came to the spot. IO asked 4-5 public person to join the investigation but they refused to join the same by stating their personal reasons and without stating their names. I handed over abovesaid plastic katta full of illicit liquor and custody of accused to the IO/HC Sunil. IO inspected the said plastic katta which was found containing total 140 quarter bottles of mota desi masaledar sharab for sale in Haryana only, 180 ml, from which one quarter bottle from each plastic katta was taken as sample, the same was sealed with the seal of SK and rest of the quarter bottles were placed in the white katta and sealed with the seal of SK. IO prepared seizure memo vide Ex. PW1/A bearing my signature at point A. IO filled M29 form. After that IO recorded my statement which is Ex. PW1/B (bearing my signature at point A) and prepared the rukka in my presence Ex. PW1/C. After that IO handed over seal to me and gave me rukka for registration of FIR. Thereafter, I went to PS and got the FIR registered, after sometime, I came back at the spot and FIR NO. 780/2023 State Vs. Bhola 2 Digitally signed by HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:01:16 +0530 handed over copy of FIR and original rukka to IO. IO prepared the site plan at my instance Ex. PW1/D bearing my signature at point A. IO arrested and personal searched the accused vide memos Ex. PW1/E and Ex. PW-1/F both bearing my signature at point A. IO recorded my statement u/s 161 Cr.P.C. I can identify the accused. Accused is present in the court and correct identified by the witness. I can identify the case property, if shown to me. At this stage, MHC(M) has produced the case property i.e. one unsealed sample of mota desi masaledar desi sharab for sale in Haryana only, 180 ml. The same is correctly identified by the witness. The same is Ex.A1. MHC(M) has also produced a copy of destruction order dated 07.12.2024. Present FIR is mentioned at S no. 107 of the same. The same is taken on record and marked as Ex. A2 (OSR) (colly)."
7. In his cross-examination, PW1 stated thus: "IO came at the spot at about 10:30 AM and left the spot at about 03:30 PM. I went to PS for registration of FIR at about 01:50 PM and came back at the spot at about 02:40 PM. There were houses and shops near the spot. No notice was served to any public person. No seal handing over memo was prepared in my presence. It is correct that I do not know my departure or arrival entries pertaining to the day of incident. Case property was taken to PS by IO in his private car. It is incorrect to suggest that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that I am deposing falsely."
8. HC Sunil was examined as PW2. He stated thus: "On 03.11.2023, I was posted at PS Dabri. On that day, on receiving DD No. 99A regarding the apprehension of accused along with illicit liquor I reached at the spot i.e H No. A55, JJ Colony, Pocket 4, Delhi where Ct. Deepak met me and handed over the accused along with recovered liquor from him to me. I requested some passers by to join the proceedings but none agreed and left the place without disclosing their names and address. Thereafter, the said katta was checked it was found containing 140 qtr. Bottles of mota masaledar desi sharab. Thereafter, I took out one qtr bottle as sample and the rest of the case property sealed with the seal of SK. The sample bottles were also sealed with the seal of SK. Form M-29 was filled up Mark D bearing my signature at point X. Seizure memo of case property was prepared vide memo already Ex. PW1/A bears my signature at point X. Thereafter, I recorded statement of Ct. Deepak which is already Ex.PW1/B bears my attesting signature at point X and prepared a rukka already Ex.PW1/C Digitally signed by FIR NO. 780/2023 State Vs. Bhola 3 HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:01:25 +0530 bearing my signature at point X and handed over the same to Ct. Deepak for the registration of the case. He went to PS and after getting the case registered returned to the spot and handed over the copy of FIR and original rukka to me. I prepared the site plan already Ex.PW1/D bearing my signature at point X. Accused was arrested and personal searched vide memo already Ex.PW-1/E and Ex. PW-1/F both bearing my signature at point X. Thereafter, we left the spot case property and samples were deposited in the malkhana. I recorded the statement of witnesses. During investigation, I got the samples deposited at ITO, Vikas Bhawan, Excise Lab through Ct. Suresh vide RC no. 556/21/23 already Mark X. Accused is present in the court today correctly identified by the witness. I can identify the case property if shown to me. At this stage, MHC(M) has produced the case property i.e. one unsealed sample of mota desi masaledar desi sharab for sale in Haryana only, 180 ml. The same is correctly identified by the witness. The same is already Ex.A1. MHC(M) has also produced a copy of destruction order dated 07.12.2024. Present FIR is mentioned at S no. 107 of the same. The same is already on record and marked as Ex. A2 (OSR) (colly)."
9. In his cross-examination, he stated thus: " I came at the spot at about 10:20 AM and left the spot at about 03:30 PM on my private motorcycle. Ct Deepak went to PS for registration of FIR at about 02:05 PM and came back at the spot at about 03:00 PM. There were houses and shops near the spot. No notice was served to any public person. No seal handing over memo was prepared in my presence. It is correct that I do not know my departure or arrival entries pertaining to the day of incident. Case property was taken to PS by me. It is incorrect to suggest that nothing incriminating has been recovered from the possession of the accused or at the instance of accused or that all the proceedings had been conducted while sitting at PS or that I am deposing falsely."
10. Statement of accused was recorded under Section 294 Cr.P.C and he admitted the following documents:
a. FIR No. 780/2023 PS Dabri alongwith certificate U/s 65B IEA as Ex.P1(Colly).
b. Entry in register no. 19 at RC No.556/21/23 as
Mark X.
c. Report of Excise Lab as Ex P2.
Digitally
FIR NO. 780/2023 State Vs. Bhola 4 signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:01:32
+0530
d. Statement of Ct. Suresh and HC Banwari Lal as Ex.P3 and Ex.P4.
11. Thus, witness at serial No. 2, 4, 5 and 6 were dropped from the list of witness.
12. The prosecution evidence was closed and thereafter the statement of accused u/s 313 Cr.P.C was recorded on 10.07.2025 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was not found in possession of illicit liquor. That he has been falsely implicated in this present case. That he is innocent and all the witnesses deposing against him are interested witnesses. The accused chose not to lead any evidence in his defence.
13. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of illicit liquor. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
14. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
15. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
16. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the Digitally signed by FIR NO. 780/2023 State Vs. Bhola 5 HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:01:40 +0530 prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
I. Non-joining of Public Witnesses
17. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
18. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW-1 and PW 2/IO reveal that they have categorically stated that there were residential houses and public persons were passing by. They had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
19. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469 , Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as FIR NO. 780/2023 State Vs. Bhola 6 Digitally signed by HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:01:46 +0530 unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola (Emphasis supplied).
20. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
II. No seal Handing over memo.
21. PW 2/IO in his cross examination stated that no seal handing over memo was prepared by him. PW 1 also stated that no seal handing over memo was prepared. Thus, in the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same.
22. As per evidence available on record, the seal after use was not given to any independent public person. Further, there is nothing on record to prove whether the said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi observed:
Digitally signed by HARSHAL FIR NO. 780/2023 State Vs. Bhola 7 HARSHAL NEGI NEGI Date:
2025.08.23 15:01:53 +0530 "9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering 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 tempered with. ......
Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
III. Discrepancy in the case qua Seizure Memo and Form M29.
23. There exists yet another discrepancy in the case of the prosecution. PW 2/IO in his examination categorically stated that he prepared the site plan, seizure memo, rukka and Form M 29 and then handed over the rukka to PW 1 for the purpose of registration of FIR. PW1, thereafter, went to the PS and got the FIR registered. PW 1 also submitted the same. Thus, it is clear from the testimony of PW 2/IO and PW 1 that the seizure memo and Form M 29 were prepared before the tehrir/original rukka was handed over by PW2 IO to PW1 for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo and Form M 29, however, surprisingly it bears the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo and Form M 29 were prepared, how the FIR number came to be noted in the seizure memo and Form M 29 since the number of the FIR could have come to knowledge of PW 2/IO only after a copy of the FIR was brought to the spot by PW 1. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo and Form M 29, which came into existence before registration of the FIR.
24. In this context, Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290 , has observed as under in paragraph 6:
Digitally FIR NO. 780/2023 State Vs. Bhola 8 signed by HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:02:03 +0530 "Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
25. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Digitally FIR NO. 780/2023 State Vs. Bhola 9 signed by HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:02:10 +0530 Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 recovery of the contraband in the manner alleged by the prosecution."
26. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said document was prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
IV. No departure or the arrival entry of PW 1.
27. The present case rests entirely on the alleged recovery of case property, i.e. illicit liquor, from the possession of the accused at the Digitally signed by FIR NO. 780/2023 State Vs. Bhola 10 HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:02:16 +0530 relevant time by a police official PW 1, who was on patrolling duty at the relevant time and place, as per the prosecution story.
28. 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 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. 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 Court wherein 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."
29. In the present matter there exists no entry which could even remotely suggest that PW 1 was assigned patrolling duty on the given date and time and he went for the purpose of patrolling at the given date and time.
30. Thus, in light of the above discussions which throws doubt on the Digitally signed by FIR NO. 780/2023 State Vs. Bhola 11 HARSHAL HARSHAL NEGI NEGI Date:
2025.08.23 15:02:22 +0530 authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that illicit liquor was recovered from the possession of the accused. The accused Bhola, is, therefore, acquitted of the offence u/s 33/38 Delhi Excise Act.
Announced in the open court on 23.08.2025.
Digitally
signed by
HARSHAL (Harshal Negi)
HARSHAL NEGI
NEGI Date: JMFC-02/Dwarka Court,
2025.08.23
15:02:28 New Delhi, 23.08.2025
+0530
It is certified that the present judgment runs into 12 pages and each page bears my signature.
Digitally
signed by
HARSHAL (Harshal Negi)
HARSHAL NEGI
JMFC-02/DwarkaCourt,
NEGI Date:
2025.08.23
15:02:32 New Delhi, 23.08.2025
+0530
FIR NO. 780/2023 State Vs. Bhola 12