Delhi District Court
State vs Sudhir on 17 December, 2025
IN THE COURT OF MS. KRITIKA JAIN, JMFC-03, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI
CNR No. : DLSW02-042410-2021
FIR No. : 259/2019
U/s : 33/38/58 Delhi Excise Act
P.S. : Bindapur
State v/s Sudhir
a) Name & address of the : HC Surender Singh
complainant
b) Name & address of accused : Sudhir
S/o Sh. Jai Bhagwan
R/o House no. 409, village
Ishar Heri, Jhajjar, Haryana
c) Date of Commission of : 29.03.2019
offence
d) Offence complained of : 33/38/58 Delhi Excise Act
e) Plea of the accused : Pleaded not guilty.
f) Ld. APP for the State : Sh. Manish Kaushik
g) Final Order : Acquittal
h) Date of Institution : 10.09.2021
i) Judgment Pronounced on : 17.12.2025
JUDGMENT
Brief facts
1. The prosecution version in brief is that on 29.03.2019, at about 01:10 AM at A-block, JJ colony, Sector-03, Dwarka New Delhi accused Sudhir was found to be in possession of 36 carton boxes, out of 14 carton boxes containing 48-48 quarter bottles of impact for sale in Haryana only 180 ml each, out of 12 carton boxes containing of 48-48 quarter bottles of party special for sale in Haryana only 180 ml and out of 10 carton boxes containing 50-50 plastic quarter State v/s Sudhir Page No. 1 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 16:59:12 +0530 bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only 180 ml each. Complainant/ informant HC Surender Singh reported the aforesaid incident to duty officer at PS Bindapur. An FIR bearing no. 259/2019 u/s 33/38/58 Delhi Excise Act was registered at PS Bindapur. Investigation of the case was handed over to Investigating Officer HC Rajendra Prasad.
Proceedings before the Court
2. On completion of investigation, a charge-sheet u/s 33/38/58 Delhi Excise Act was filed against the present accused, i.e., Sudhir. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her 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 33/38/58 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 ASI Surender Singh had deposed that he was posted at Special staff, Dwarka District, New Delhi as HC. On 28.03.19, vide DD no.8, he alongwith HC Mahesh, Ct. Vinit were on patrolling duty for collecting the information of cases. At about 1:05 AM, State v/s Sudhir Page No. 2 of 23 FIR No. 259/2019 KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.12.17 16:59:18 +0530 on 29.03.2019, they reached at Matiala land, near Sec-3, JJ colony, Dwarka and met with secret informer who told them that the illicit liquor were putting down from Innova car at A block park, Sec-3, JJ Colony, Dwarka and if raid would conduct, they can be apprehended alongwith illicit liquor. He shared the said information to Senior officers and they gave the directions to take immediate and appropriate action upon the information. Without wasting of time, he constituted a raiding party including police officials and secret informer. He asked public passers to join the investigation but none agreed and left the place with disclosing their personal reasons. Due to paucity of time, no notice could served to them. He with the help of police staff and hint of secret informer reached near A block, JJ colony, Sec-3, Dwarka and secret informer pointed out towards the Innova Car and place, from where illicit liquor were putting down from Innova car and secret informer went away from the said place. He with the help of police staff reached at the spot and tried to apprehend the person who was brought out the illicit liquor from the Innova car and he with the help of Ct. Vinit apprehended the said person who was removing the illicit liquor from the Innova car and other person run away alongwith Innova car and HC Mahesh went behind him to chase him but accused went away with Innova car and HC Mahesh came back at the spot. Upon asking, the apprehended person told State v/s Sudhir Page No. 3 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 16:59:25 +0530 them his name and address as Sudhir S/o Jai Bhagwan R/o H no. 409, Village Isserhedi, District Jhajjar, aged about 23 year. Upon asking, they came to know that the name of the person who ran away from the spot alongwith Innova car was as Pawan R/o In the street of Orthoplus near DTC Depot, Najafgarh. 36 carton boxes of illicit liquor were recovered from the possession of apprehended person, namely, Sudhir, out of 14 carton boxes with the marked of ADS were containing of 48-48 quarter bottles of Impact for sale in Haryana only, 180 ml, 12 carton boxes of Party Special Whiskey were containing of 48-48 glass bottle of Party Special for sale in Haryana only 180 ml & remaining 10 carton boxes were containing of 50-50 quarter boxes of Asli Santra Masaledar desi Sharab for sale in Haryana only, 180 ml each. He took one one quarter bottle from each carton boxes as a sample and put back remaining quarter bottle into respective carton boxes. He put 14 samples of ADS Impact Grain Whiskey into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-1. He put 12 samples of Party Special into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-2. He put 10 samples of Asli Santra Masaledar desi Sharab into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed State v/s Sudhir Page No. 4 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 16:59:32 +0530 with the seal of SK and marked SR-3. He put remaining quarter bottles in respective carton boxes in 07 plastic katta (1X2) ADS Impact Grain Whiskey and marked SR no. 4 to 10, and put 12 carton boxes containing of 47-47 quarter bottles of Party Special into 06 plastic katta (1X2) and marked Sr no.11 to 16 and put 10 carton boxes containing of 49-49 of Asli Santra Masaledar desi Sharab into five plastic katta (1X2) and marked Sr no. 17 to 21 and sealed with the seal of SK. He seized total recovered illicit liquor from possession of accused vide seizure memo Ex.PW1/A and bearing his signature at point A and filled M-29 from at the spot Mark A. He handed over seal after used to Ct. Vinit. He prepared tehrir as ExPW1/B and bearing his signature at point A and handed over tehrir to Ct. Vinit and gave him direction for the registration of FIR and sent him to PS. Accordingly, he went to PS and came back at the spot alongwith HC Rajender Prasad to whom further investigation of the present case was marked. HC Rajender Prasad prepared site plant at his instances Ex. PW1/C and bearing his signature at point A. IO recorded his statement U/s 161 CrPC. Accused was correctly identified by the witness.
Thereafter, MHC(M) has produced the destruction order of the case property. Same is taken on record and Ex.P-1 (OSR) (colly). MHC(M) has also produced the samples of the case property, i.e., one glass quarter bottle of Impact Grain whisky for sale in State v/s Sudhir Page No. 5 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 16:59:40 +0530 Haryana only qty 180 ML. One glass quarter bottle of Party special whisky for sale in Haryana only qty 180 ML and plastic quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only, 180 ml. Same are shown to the witness. After seeing, witness correctly identified the same. Same are Ex. P-2 to Ex. P-4. The said witness was cross-examined by Ld. defence counsel.
(ii) PW-2 ASI Arvind had deposed that on 28.03.19, he was posted at PS: Bindapur as MHC(M) CP. On the directions of IO, namely, HC Surender Singh, he collected sealed case property and sealed samples with the seal of SK alongwith copy of seizure memo and form M-29 and other relevant documents. Same were deposited at Malkhana of PS by me vide mud No. 2452/2019, the relevant record is ExP-1 (OSR-colly).
On 17.04.2019, he handed over the sealed exhibits alongwith relevant documents vide RC No. 73/21/19 (ExP-2,OSR) to Ct Malkit for depositing the same at Excise Office ITO for result analysis. Accordingly, Ct Malkit went Excise office and deposited the same. He handed over him the receipt of depositing on the same day. The exhibits were not tampered with during the time they were in his possession. The said witness was cross-examined by Ld. defence counsel.
(iii) PW-3 SI Mahesh Kumar had deposed that he was posted at Special staff of Jail Bail Cell, Sector-3, Dwarka District, New Delhi as HC. On 28.03.19, vide State v/s Sudhir Page No. 6 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 16:59:47 +0530 DD no.8, he alongwith HC Surender, Ct. Vinit were on patrolling duty for collecting the information of cases. At about 1:05 AM, on 29.03.2019, they reached at Matiala land, near Sec-3, JJ colony, Dwarka and met with secret informer who told them that the illicit liquor were putting down from Innova car at A block park, Sec-3, JJ Colony, Dwarka and if raid would conduct, they can be apprehended alongwith illicit liquor. IO HC Surender shared the said information to Senior officers and they gave the directions to take immediate and appropriate action upon the information. Without wasting of time, IO HC Surender constituted a raiding party including police officials and secret informer. IO HC Surender asked public passers to join the investigation but none agreed and left the place with disclosing their personal reasons. Due to paucity to time, no notice could serve to them. IO HC Surender with the help of police staff and hint of secret informer reached near A block, JJ colony, Sec-3, Dwarka and secret informer pointed out towards the Innova Car and place, from where illicit liquor were putting down from Innova car and secret informer went away from the said place. IO HC Surender with the help of police staff reached at the spot and tried to apprehend the person who was brought out the illicit liquor from the Innova car and IO HC Surender with the help of Ct. Vinit apprehended the said person who was removing the State v/s Sudhir Page No. 7 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 16:59:54 +0530 illicit liquor from the Innova car and other person run away alongwith Innova car and he went behind him to chase him but accused went away with Innova car and he came back at the spot. Upon asking, the apprehended person told them his name and address as Sudhir S/o Jai Bhagwan R/o Hno. 409, Village Isserhedi, District Jhajjar, aged about 23 year. Upon asking, they came to know that the name of the person who ran away from the spot alongwith Innova car was as Pawan R/o In the street of Orthoplus near DTC Depot, Najafgarh. 36 carton boxes of illicit liquor were recovered from the possession of apprehended person, namely, Sudhir, out of 14 carton boxes with the marked of ADS were containing of 48-48 quarter bottles of Impact for sale in Haryana only, 180 ml, 12 carton boxes of Party Special Whiskey were containing of 48-48 glass bottle of Party Special for sale in Haryana only. 180 ml & remaining 10 carton boxes were containing of 50-50 quarter boxes of Asli Santra Masaledar desi Sharab for sale in Haryana only, 180 ml each. IO HC Surender took one one quarter bottle from each carton boxes as a sample and put back remaining quarter bottle into respective carton boxes.
IO HC Surender put 14 samples of ADS Impact Grain Whiskey into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-1. IO HC Surender put 12 samples of Party Special into one plastic katta State v/s Sudhir Page No. 8 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:00:01 +0530 and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-2. IO HC Surender put 10 samples of Asli Santra Masaledar desi Sharab into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-3. IO HC Surender put remaining quarter bottles in respective carton boxes in 07 plastic katta (1X2) ADS Impact Grain Whiskey and marked SR no. 4 to 10, and put 12 carton boxes containing of 47-47 quarter bottles of Party Special into 06 plastic katta (1X2) and marked SR no.11 to 16 and put 10 carton boxes containing of 49-49 of Asli Santra Masaledar desi Sharab into five plastic katta (1X2) and marked SR no. 17 to 21 and sealed with the seal of SK. IO HC Surender seized total recovered illicit liquor from possession of accused vide seizure memo already ExPW1/A and bearing his signature at point B and filled M-29 from at the spot. IO HC Surender handed over seal after used to Ct. Vinit. IO HC Surender prepared tehrir and got the FIR registered through Ct Vinit. Ct Vinit alongwith HC Rajender Prasad reached at the spot to whom further investigation of the present case was marked. HC Rajender Prasad prepared site plant at the instances of HC Surender. IO HC Rajender recorded his statement U/s 161 CrPC. Accused was correctly identified by the witness. The destruction order of the case property has already placed on record and State v/s Sudhir Page No. 9 of 23 FIR No. 259/2019 KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.12.17 17:00:11 +0530 already Ex.P-1 (OSR) (colly). MHC(M) has also produced the samples of the case property, i.e., one glass quarter bottle of Impact Grain whisky for sale in Haryana only qty 180 ML. One glass quarter bottle of Party special whisky for sale in Haryana only qty 180 ML and plastic quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only, 180 ml. Same are shown to the witness. After seeing, witness correctly identified the same. Same are already Ex. P-2 to Ex. P-4. The said witness was cross- examined by Ld. defence counsel.
(iv) PW-4 Ct. Vineet had deposed that he was posted at Special staff of Jail Bail Cell, Sector-3, Dwarka District, New Delhi as HC. On 28.03.19, vide DD no.
8, he alongwith HC Surender, HC Mahesh were on patrolling duty for collecting the information of cases. At about 1:05 AM, on 29.03.2019, they reached at Matiala land, near Sec-3, JJ colony, Dwarka and met with secret informer who told them that the illicit liquor were putting down from Innova car at A block park, Sec-3, JJ Colony, Dwarka and if raid would conduct, they can be apprehended alongwith illicit liquor. IO HC Surender shared the said information to Senior officers and they gave the directions to take immediate and appropriate action upon the information. Without wasting of time, IO HC Surender constituted a raiding party including police officials and secret informer. IO HC Surender asked public State v/s Sudhir Page No. 10 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:00:19 +0530 passers to join the investigation but none agreed and left the place with disclosing their personal reasons. Due to paucity to time, no notice could serve to them. IO HC Surender with the help of police staff and hint of secret informer reached near A block, JJ colony, Sec-3, Dwarka and secret informer pointed out towards the Innova Car and place, from where illicit liquor were putting down from Innova car and secret informer went away from the said place. IO HC Surender with the help of police staff reached at the spot and tried to apprehend the person who was brought out the illicit liquor from the Innova car and IO HC Surender with my help apprehended the said person who was removing the illicit liquor from the Innova car and other person run away alongwith Innova car and HC Mahesh went behind him to chase him but accused went away with Innova car and HC Mahesh came back at the spot. Upon asking, the apprehended person told them his name and address as Sudhir S/o Jai Bhagwan R/o H no. 409, Village Isserhedi, District Jhajjar, aged about 23 year. Upon asking, they came to know that the name of the person who ran away from the spot alongwith Innova car was as Pawan R/o In the street of Orthoplus near DTC Depot, Najafgarh. 36 carton boxes of illicit liquor were recovered from the possession of apprehended person, namely, Sudhir, out of 14 carton boxes with the marked of ADS were containing of 48-48 quarter State v/s Sudhir Page No. 11 of 23 FIR No. 259/2019 KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.12.17 17:00:27 +0530 bottles of Impact for sale in Haryana only, 180 ml, 12 carton boxes of Party Special Whiskey were containing of 48-48 glass bottle of Party Special for sale in Haryana only. 180 ml & remaining 10 carton boxes were containing of 50-50 quarter boxes of Asli Santra Masaledar desi Sharab for sale in Haryana only, 180 ml each. IO HC Surender took one one quarter bottle from each carton boxes as a sample and put back remaining quarter bottle into respective carton boxes.
IO HC Surender put 14 samples of ADS Impact Grain Whiskey into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-1. IO HC Surender put 12 samples of Party Special into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-2. IO HC Surender put 10 samples of Asli Santra Masaledar desi Sharab into one plastic katta and tied the opening of white plastic katta with piece of white cloth and sealed with the seal of SK and marked SR-3. IO HC Surender put remaining quarter bottles in respective carton boxes in 07 plastic katta (1X2) ADS Impact Grain Whiskey and marked SR no. 4 to 10, and put 12 carton boxes containing of 47-47 quarter bottles of Party Special into 06 plastic katta (1X2) and marked SR no.11 to 16 and put 10 carton boxes containing of 49-49 of Asli Santra Masaledar desi Sharab into five plastic katta (1X2) and marked SR no. 17 to 21 and State v/s Sudhir Page No. 12 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:00:33 +0530 sealed with the seal of SK. IO HC Surender seized total recovered illicit liquor from possession of accused vide seizure memo already ExPW1/A and bearing his signature at point C and filled M-29 from at the spot. IO HC Surender handed over seal after used to him. IO HC Surender prepared tehrir and got the FIR registered through him. I alongwith HC Rajender Prasad reached at the spot to whom further investigation of the present case was marked. HC Rajender Prasad prepared site plant at the instances of HC Surender. IO HC Rajender recorded my statement U/s 161 CrPC. Accused was correctly identified by the witness. The destruction order of the case property has already placed on record and already Ex.P-1 (OSR) (colly). MHC(M) has also produced the samples of the case property i.e. one glass quarter bottle of Impact Grain whisky for sale in Haryana only qty 180 ML.
One glass quarter bottle of Party special whisky for sale in Haryana only qty 180 ML and plastic quarter bottle of Asli Santra Masaledar desi Sharab for sale in Haryana only, 180 ml. Same are shown to the witness. After seeing, witness correctly identified the same. Same are already Ex. P-2 to Ex. P-4. The said witness was cross-examined by Ld. defence counsel.
(v) PW-5 HC Malkeet had deposed that on 17.04.2019, he was posted at PS: Bindapur as Ct. I took sealed exhibits (sealed with the seal of SK) of present case vide RC no. 73/21/19 (already Ex. P-2, OSR) from State v/s Sudhir Page No. 13 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:00:40 +0530 MHC (M) Bindapur alongwith form M-29 and copy of seizure memo and other relevant documents and deposited the same at Excise office, Vikas Bhawan, ITO for result analysis. He handed over the receipt of depositing the samples to MHC(M) on the same day. The exhibits were not tampered with during the time they were in his possession.
(vi) PW-6 ASI Rajender Prasad had deposed that In the year 2019, he was posted at PS Bindapur. On 29.03.2019, the investigation in the present case was handed over to him after registration of FIR.
Thereafter, He alongwith Ct. Dinesh reached at the spot i.e. J.J. Colony, Matiala where he met with the special staff officials namely HC. Surender, Mahesh, Vineet and Moti Lal. HC Surender handed over to him the accused and the case property. He also handed over to him the documents related to the present case. He prepared the site plan at the instance of HC Surender, which is already Ex. PW 1/C bearing his signature at point B. Thereafrer, he arrested the accused vide arrest memo Ex. PW6/A bearing his signature at point A. He also conducted the personal search of the accused vide personal search memo Ex. PW6/B bearing his signature at point A. He also recorded the disclosure statemnet of the accused Sudhir vide disclosure statement Ex. PW6/C bearing his signature at point A. Thereafter, they left the spot and came back to PS with the accused and the case property. He deposited the State v/s Sudhir Page No. 14 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:00:47 +0530 case property to the MHC(M). Thereafter, Ct. Dinesh took the accused to the hospital and came back to PS after conducting his medical examination. Thereafter, accused was produced before the concerned court. After receiving the excise result, he prepared the challan and filed the same before the concerned court. Accused was correctly identified by the witness.
(vii) PW- 7 HC Sheesh Ram had deposed that on 29.03.2019, he was posted at PS Bindapur as CCTNS operator. On that day, his working hours were from 08.00 PM to 08.00 AM. Ct. Vinay produced the tehrir before DO ASI Ram Karan. He recorded the contents of FIR in computer system and thereafter, produced the computerised copy of DO ASI Ram Karan who handed over the same to IO Rajender Prasad Meena after endoresement. The said witness was cross-
examined by Ld. defence counsel.
(viii) PW- 9 HC Dinesh Kumar had deposed that he was posted at PS Bindapur as Ct. On 29.03.2019, he alongwith IO HC Rajendra reached at the spot, i.e., JJ colony, Matiala where they met Special Staff HC Surender, HC Mahesh, Ct. Vineet and Ct. Motilal. HC Surender handed over the custody of accused as well as selead case property and relevant document before them. IO interrogated the accused and recorded his disclosure statement already Ex.PW6/C and bearing his signature at point B. IO arrested and conducted personal search of accused vide memos already State v/s Sudhir Page No. 15 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:00:53 +0530 Ex.PW6/A and Ex.PW6/B bearing his signature at point B respectively. Thereafter, case property was deposited at malkhana alongwith relevant docuement and he took the accused and conducting his medical examination. They produced the accused before the Hon'ble court and he was sent to JC. Accused was correctly identified by the witness. The said witness was cross-examined by Ld. defence counsel.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR bearing no. 259/2019 without contents, DD no. 9B dated 11.04.2019 and DD no. 08 dated 28.03.2019 and Excise Control Laboratory Result.
The above-said documents were exhibited as Ex. A-1 to Ex. A-4 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 351 BNSS was recorded wherein all the incriminating evidence appearing against the accused was put to her, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in her defence.
7. It is argued by Sh. Manish Kaushik, 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 36 carton boxes, out of 14 carton boxes containing 48-48 quarter bottles of impact for sale in Haryana only 180 ml each, out of 12 carton boxes containing of 48-48 quarter bottles of party special for sale in State v/s Sudhir Page No. 16 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:01:00 +0530 Haryana only 180 ml and out of 10 carton boxes containing 50-50 plastic quarter bottles of Asli Santra Masaledar Desi Sharab for sale in Haryana only 180 ml each. 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.
8. 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, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, went through the relevant provisions of law and gave my thoughts to the matter.
Findings of the Court
10. It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11. The first argument 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.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of State v/s Sudhir Page No. 17 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:01:06 +0530 the witness PW-1 ASI Surender Singh, PW-2 ASI Arvind, PW-3 SI Mahesh Kumar, PW-4 Ct. Vineet, PW-5 HC Malkeet, PW-6 ASI Rajender Prasad, PW-7 HC Sheesh Ram and PW-9 HC Dinesh Kumar reveals that PW-1 ASI Surender Singh had asked 4-5 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. 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 unworthy of reliancebut 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) State v/s Sudhir Page No. 18 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:01:12 +0530
13. In the present case also, non-joining 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.
14. Perusal of the record further reveals that there is a delay of about one month in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
"The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
State v/s Sudhir Page No. 19 of 23
FIR No. 259/2019
Digitally
signed by
KRITIKA
KRITIKA JAIN
JAIN Date:
2025.12.17
17:01:19
+0530
15. In the instant case, alleged recovery was made on 28.03.2019 yet the samples were sent to the Excise Control Laboratory for examination on 17.04.2019, i.e. after about one month. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16. Perusal of the tehrir prepared by ASI Surender Singh. ASI Surender Singh reveals that he had first prepared the seizure memo of the case property Ex. PW-1/A as well as Form M-29 and after that rukka was prepared and sent to the police station for registration of FIR and thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the illicit liquor and Form M-29 were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the seizure memo of the case property which is Ex. PW-1/A as well as Form M-29, however, surprisingly, seizure memo of the case property Ex. PW-1/A as well as Form M- 29 bear the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge only after a copy of the FIR was brought to the spot. The number of FIR in no circumstances could have been mentioned by PW-1 on seizure memo and Form M-29, which came into existence before registration of the FIR. However, as discussed above, seizure memo of the case property Ex. PW-1/A as well as State v/s Sudhir Page No. 20 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:01:26 +0530 Form M- 29 bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"...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." (Emphasis supplied)
17. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while State v/s Sudhir Page No. 21 of 23 FIR No. 259/2019 Digitally signed by KRITIKA KRITIKA JAIN JAIN Date:
2025.12.17 17:01:33 +0530 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 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 State v. Om Prakash 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." (Emphasis supplied)
18. Let this court now analyse the evidence appearing on record keeping in mind the above judgments of the Hon'ble High Court of Delhi. In the present case, PW-1 ASI Surender Singh, who had prepared the documents in question, has State v/s Sudhir Page No. 22 of 23 FIR No. 259/2019 KRITIKA JAIN Digitally signed by KRITIKA JAIN Date: 2025.12.17 17:01:42 +0530 categorically mentioned in the tehrir which has been prepared by him that he had prepared the seizure memo Ex. PW-1/A and Form M-29 before the tehrir was prepared. In such a scenario, it remains unexplained as to how the FIR No. and its details figure on the top of the document Ex. PW-1/A. This 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.
19. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Sudhir is, therefore, acquitted of the offence u/s 33/38/58 Delhi Excise Act.
20. This judgment contains 23 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
ANNOUNCED IN THE OPEN COURT Digitally TODAY, i.e., On 17.12.2025 KRITIKA signed by KRITIKA JAIN Date:
JAIN 2025.12.17
16:58:55
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Kritika Jain
Judicial Magistrate First Class-03 South-West District/New Delhi 17.12.2025 State v/s Sudhir Page No. 23 of 23 FIR No. 259/2019