Delhi District Court
State vs Vinod Kumar on 25 April, 2026
DLWT020031622021
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS-06,
DISTRICT- WEST, TIS HAZARI COURTS, DELHI.
Presided by: SH. GAURAV SINGAL, DJS
State vs. Vinod
FIR No. 445/19
PS - Mundka
U/s 33/38 Delhi Excise Act
JUDGMENT
1) Case ID : 2590/21
2) The date of commission of offence : 22.12.2019
3) The name of the complainant : Ct. Sanjay
4) The name & parentage of accused : Vinod
S/o Sh. Harbans
R/o C-254, JJ Colony,
Bakkarwala, Delhi
5) Offence involved : U/s 33/38 Delhi Excise Act
6) Ld. APP for the State : Sh. Sandeep Kumar.
7) The plea of accused : Pleaded not guilty
8) Final order : Acquittal
9) Judgment reserved on : 25.04.2026
10) Judgment announced on : 25.04.2026
State Vs. Vinod FIR No. 445/19 1 of 18
BRIEF FACTUAL POSITION:
1. The brief facts of the case of the prosecution are that on 22.12.2019 at 9:30 PM at JJ Colony Bakkarwala Main Gate, Delhi, within the jurisdiction of PS Mundka, the accused was found in possession of illicit liquor in a sack as per seizure memo mark X1, which was beyond the prescribed quantity as per the notification issued by Delhi Administration, and thereby committed an offence under sections 33/38 of the Delhi Excise Act, 2009 (hereinafter to be referred to as 'The Act').
2. An investigation was conducted into the allegations. Upon completion thereof, a chargesheet was filed. Cognizance was taken against the offence on 23.02.2021, and accordingly, he was summoned. Compliance with section 207 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'Cr.P.C.'), was done by providing a copy of the charge sheet and annexed documents to the accused.
3. Upon finding a prima facie case against the accused. A formal charge for the offence punishable under sections 33/38 of the act was framed against the accused, to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION:
4. a) A statement under Sec. 294 of Cr.P.C. was recorded in which the accused persons had admitted the following:
a. FIR NO. 445/2019 as Ex. P-1.
b. Certificate U/s 65B as Ex. P-2.
c. DD No. 2A as Ex. P-3.
State Vs. Vinod FIR No. 445/19 2 of 18
d. DD No. 50B as Ex. P-4.
e. Excise test result dated 03.02.2020 as Ex. P-5.
5. To substantiate the allegations, the prosecution has examined three (03) witnesses.
i) PW-1 SI Pardeep deposed that on 22.12.2019, he was posted as HC at PS Mundka. On that day, he received DD entry no. 50B regarding recovery of illicit liquor. PW-1 went to the spot i.e. near DDA Flat, 300 Foota Road, Bakkarwala Delhi. There, he met with Ct. Sanjay who handed over the custody of accused and recovered illicit liquor to PW-1. PW-1 requested 4-5 passerby to join the investigation. However, none of them agreed. PW-1 checked and counted illicit liquor recovered from the sack and found that 100 quarter bottles labeled with Asli Santra Masaledar Deshi Sharab For Sale In Haryana Only were lying inside the sack. PW-1 took out one quarter bottle as sample bottle. He kept remaining bottles inside the sack and converted into the pulanda. I sealed the same with the seal of PR. PW-1 seized the same vide seizure memo which is Ex. PW1/A. PW-1 recorded statement of Ct. Sanjay which is Ex.PW1/B. PW-1 endorsed the same vide rukka which is Ex.PW1/C and got the FIR registered through Ct. Sanjay. After the registration of FIR, PW-1 prepared the site plan which is Ex. PW1/D. PW-1 arrested the accused vide arrest memo which is Ex.PW1/E. PW-1 conducted the personal search of accused vide personal search memo which is Ex.PW1/F. PW-1 recorded the disclosure statement of accused vide memo which is Ex.PW1/G. At the time of recovery, PW-1 had filled form M29 at the spot which is Ex.PW1/GA. PW-1 had sent the sample bottles before excise lab through Ct. Pawan and he submitted the same State Vs. Vinod FIR No. 445/19 3 of 18 there. Later on, PW-1 collected the excise lab report and made it part of record and the same is Ex.PW1/GB. PW-1 had also recorded the statement of witnesses u/s 161 Cr.P.C. PW-1 had prepared the charge- sheet and submitted before the concerned court. PW-1 correctly identified the accused. MHC(M) had produced one of the sample from the case property i.e. illicit liquor bearing the seal of PK (the said seal bears the seal of MHC(M) concerned and after seeing the same, PW-1, correctly identified the same. The same is Ex.PA1. The destruction order related to case property is Ex.PW1/H (Colly).
ii) PW-2 Ct. Pawan deposed that on 24.12.2019, he was posted as Constable at PS Mundka. On that day, on the direction of the IO concerned, PW-2 took the sample of illcit liquor to the excise lab vide RC No. 199/21/2019 and submitted the same there. IO recorded statement u/s 161 Cr.P.C of PW-2.
ii) PW-3 HC Sanjay deposed that on 22.12.2019, he was posted as Constable at PS Mundka. On that day, PW-3 was performing beat patrolling duty in the area of JJ Colony Bakkarwala, Delhi and at about 09:30 PM while performing my duty he reached main chowk of Bakkarwala where, PW-3 met a secret informer who informed him that one person is coming from the side of 300 Foota Road with illicit liquor and if raid is conducted, he may be apprehended. Thereafter, PW-3 tried to inform the senior officials however, despite best efforts he could not reach out to any senior officers and considering the seriousness of the information without westing time PW-3 proceeded with the further appropriate steps. Thereafter, PW-3 went the spot as informed by secret State Vs. Vinod FIR No. 445/19 4 of 18 informer i.e. DDA Flats, 300 foota Road where the secret informer pointed towards one unknown person who was carrying one white colour plastic katta on his shoulder and secret informer left the spot. PW-3 managed to apprehend the said unknown person with the plastic katta. PW-3 opened and checked the said plastic katta and it was found containing quarter bottles of illicit liquor. The identity of said person was revealed as Vinod Kumar S/o Sh. Harbansh. Thereafter, PW-3 informed the concerned duty officer regarding the recovery of illicit liquor where upon HC Pardeep came at the spot and I handed-over the accused with case property to him. PW-3 correctly identified the accused. PW-3 further reiterated the testimony of PW-1. The case property is already Ex. PA1 and PW1/H (colly).
6. After the examination of all the witnesses, prosecution evidence was closed, and the statement of the accused under section 313 Cr.P.C. was recorded vide order dated 12.03.2026, wherein he refuted the allegations levelled against him. The accused pleaded innocence and false implication. And he opted not to lead any defence evidence.
7. Final arguments were led on behalf of both the parties.
7.1 Ld. APP for the state has argued that on a combined reading of prosecution evidence, offences under sections 33/38 of the act stand proved beyond reasonable doubt against the accused persons.
7.2 On the other hand, Ld. Counsel for the accused has argued that there is no legally admissible evidence against the accused and that the accused has been falsely implicated in the present matter. It is further argued that the prosecution has failed to prove the case against the State Vs. Vinod FIR No. 445/19 5 of 18 accused beyond a reasonable doubt, and hence, the accused is entitled to be acquitted.
8. Submissions have been considered, and the record of the case has been carefully perused.
RELEVANT PROVISIONS OF LAW:
9. Before proceeding further, it is pertinent to refer to relevant provisions of law.
I. Section 33 of the act: Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision 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 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 any 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 State Vs. Vinod FIR No. 445/19 6 of 18 years and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees.
II. Section 38 of the act: Penalty for possession of liquor unlawfully imported, non-duty paid, etc. 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.
III. Section 100 of Cr.P.C.:- Persons in charge of closed place to allow search (4) 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 search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
IV. S. 37 of Cr.P.C.:- Public when to assist Magistrates and police Every person is bound to assist a Magistrate or police officer reasonably demanding his aid--
1. in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorised to arrest; or
2. in the prevention or suppression of a breach of the peace; or State Vs. Vinod FIR No. 445/19 7 of 18
3. in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
V. Section 187 of Indian Penal Code, 1860:-
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 punihed 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 purposes of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or 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.
VI. S. 42 of Cr.P.C.:- Arrest on refusal to give name and residence.
1. When any person who, in the presence of a 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 person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required;
State Vs. Vinod FIR No. 445/19 8 of 18 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 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.
VII. Chapter 22 Rule 49(c) 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 personally by signature or seal in Register No. II.
VIII. Burden of proof: It is a well-established principle of criminal law that the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubt. It is for the prosecution to travel the entire distance from 'may' have to 'must' have. If the prosecution appears to be improbable or lacks credibility, then the benefit of the doubt necessarily must go to the accused. The principle is rooted in the maxim that an accused is presumed innocent until proven guilty. It is the obligation on the part of the prosecution to establish an unbroken link between the chain of events/circumstances and to eliminate any reasonable doubt that might appear in the mind of a prudent man. The prosecution has the bounden duty to discharge the initial onus before it can shift onto the State Vs. Vinod FIR No. 445/19 9 of 18 other party.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
10. In the present case, the accused person has been charged with the offence punishable under section 33 read with 38 of the act.
11. The accused had admitted DD No. 2A as Ex. P-3, DD No. 50B as Ex. P-4, Excise test result dated 03.02.2020 as Ex. P-5, in his statement u/s 294 of the Cr.P.C. The same stands proved accordingly.
12. Neither any document establishing the departure or the arrival entry of the police officials who allegedly found the accused person with the illicit liquor on the spot has been placed on record by the prosecution, nor is any form of explanation for these lacunae furnished by the prosecution. This creates doubt regarding his presence at the spot and makes the prosecution version suspicious. Reliance is placed on the decision of the Hon'ble High Court of Delhi cited as Rattan Lal vs. State, 1987 (2) Crimes 29.
13. It is not the case of the prosecution that no public witnesses were available. It is stated by witnesses that IO had requested some passersby to join the proceedings. However, no one was willing to join the proceedings. It becomes important to revisit the provisions of section 100(4) of Cr.P.C. and section 187 of the Indian Penal Code, 1860. IO has failed to explain why their names and residence were not recorded or why any notice was not issued to them, as per the aforementioned discussed provisions. When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty State Vs. Vinod FIR No. 445/19 10 of 18 bound to comply with the same. At least he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice u/s 187 of the IPC should be given to him. Merely stating that the public person refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency. A stereotypical statement of non-availability or non-agreement on behalf of a witness will not be sufficient to inspire the faith of the court in the story of the prosecution. Non-availability of any independent witness/evidence raises suspicion and serious doubt over the case of the prosecution. More so, when the IO failed to even record the names and details of such a person and failed to take any required steps in terms of Sections 37 and 42 of Cr.P.C. Reliance is placed on the case of Anoop Joshi vs. State, 1992 (2) C.C. Cases 314 (HC); the Hon'ble High Court of Delhi has observed as under:
"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".
13.1 However, it is also established that the absence of any independent witness does not, per se, vitiate the entire case of the prosecution if the same can be duly explained. Reference may be made to the decision of the Hon'ble Supreme Court in Tahir v. State (Delhi) 1996 3 SCC 338, wherein it was observed that although there is no rule of evidence that a conviction cannot be based on the sole testimony of police officials, prudence demands more careful scrutiny of the testimony of police officials, as they may be considered to be interested in the outcome of the case. The rule of prudence requiring independent witnesses is born State Vs. Vinod FIR No. 445/19 11 of 18 out of this careful scrutiny and requires that in cases where the timing of the offence and surrounding circumstances indicate that it was fairly possible for the investigating officer to procure independent witnesses, he failed to do so.
13.2 While the stipulations of Section 100 of the Cr.P.C. are indeed directory, non-compliance with this provision does not necessarily doom the case of the prosecution, as ruled by the Honorable Supreme Court in State of Punjab Vs. Balbir Singh AIR 1994 SCC 1872.
"6. At this juncture, we may also dispose of one of the contentions that failure to comply with the provisions of CrPC in respect of search and seizure even up to that stage would not vitiate the trial. This aspect has been considered in number of cases and it has been held that violation of the provision particularly that of Section 100, 102, 103 or 165 CrPC strictly per se does not vitiate the prosecution case. If there is such violation, what the Court have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the Courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record".
7. It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and State Vs. Vinod FIR No. 445/19 12 of 18 strictly comply with these provisions.
13.3 In the present case, all the witnesses stated that members of the public were invited to participate in the investigation; however, none consented to join or provided their names and addresses before departing the location. Given the current societal situation where the public is reluctant to get involved in legal issues, it cannot be stated that, in this case, the police made no attempts to include public witnesses in the investigation. In Appa Bhai and Anr. vs. State of Gujarat AIR 1988 SC 696, it was determined that the case of the prosecution cannot be dismissed or questioned solely based on the absence of public witnesses, as these witnesses typically avoid court unless absolutely necessary. In the 11th paragraph of the aforementioned ruling, it has been noted that:
"it is no doubt true that prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There mus have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused".
13.4. It is trite law that there is reason to doubt the testimony of State Vs. Vinod FIR No. 445/19 13 of 18 prosecution witnesses merely on the ground that they are police personnel, as has been held by the Hon'ble Supreme Court in Karamjeet Singh Vs. State (Delhi Administration), AIR 2003 SC 1311. Para 8 of the aforesaid judgment reads as follows:
"8.testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."
14. As per the testimony of all the witnesses, the illicit liquor was seized vide Ex. PW1/A; thereafter, the rukka was prepared. In the cross- examination of PW1, he deposed that the first document prepared by him was the "tehrir." The witnesses had accepted the suggestion that the seizure memo was prepared in one go and no alteration was made at a later stage. The perusal of the seizure memo reflects the registration number of the FIR. The testimony of the witnesses puts questions on the case of the prosecution on the point of when the case property was seized, i.e., before the registration of the FIR or after the registration of the FIR. These inconsistencies make the case of prosecution and alleged recovery doubtful.
15. The evidence of the prosecution remained silent on the point of "seal" after use. Also, PW1 deposed that no document was created for the handover or return of the seal. Furthermore, there is no documentation of a taking-over memo indicating when the seal was State Vs. Vinod FIR No. 445/19 14 of 18 retrieved from the witnesses, if given, or whether it stayed with him indefinitely. Nevertheless, this gap must be considered alongside the fact that the sample was dispatched to the Excise Lab on 24.12.2019, which is within twenty-four hours after the seizure date, i.e., 23.12.2019. However, this alone is inadequate to dismiss the chance of interference with the case property. Furthermore, the prosecution does not claim that the seal was out of the reach of the investigating officer, eliminating any possibility of tampering with the case property. Consequently, in light of the circumstances and of the factum of non-production/proof of handling over of the seal to any independent witness, the court is of the view that the conditions under which the seal was acquired and utilized are shrouded in uncertainty.
15.1 In this regard, judgment in the case titled Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452 may be adverted to, wherein it was observed in paragraph 7 that "....The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer- Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
State Vs. Vinod FIR No. 445/19 15 of 18 15.2 The Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed the following:
"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. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
16. Furthermore, no CCTV, photography, or videography of the spot is produced on record to substantiate their allegation against the accused persons, despite the fact that all the witnesses remained on the spot for more than four hours. Also, there is no mention in the testimonies of the witness of how the case property was brought back to the PS. Thus, the possibility of case property being tampered with is extremely strong, and therefore, manipulation of the said sample or seized property cannot be ruled out. Reference may be drawn from the decision cited as Safiullah vs. State (1993) 49 DLT 193.
17. Considering the aforementioned analysis, this court holds the
-
opinion that the prosecution's case has not succeeded in demonstrating an uninterrupted chain of circumstances. It has not fulfilled its obligation to transfer the burden of proof to the opposing party. It is a State Vs. Vinod FIR No. 445/19 16 of 18 well-established principle that if two plausible and equally balanced interpretations of the evidence exist, one must acknowledge the presence of reasonable doubt. The previously mentioned launcae in the prosecution's narrative make their account questionable, resulting in the determination that the onus of establishing the accused's guilt beyond reasonable doubt has not been fulfilled by the prosecution.
18. Accordingly, this Court hereby accords the benefit of doubt to the accused person and holds the accused person not guilty of the commission of the said offences. Consequently, the accused Vinod S/o Sh. Harbans is acquitted of the offence punishable under sections 33/38 of the act.
Digitally
signed by
GAURAV
GAURAV SINGAL
Pronounced in the open (GAURAV
SINGAL SINGAL)
Date:
Court on 25.04.2026 JMFC-06 (West), Tis2026.04.25
Hazari Courts
17:19:47
Delhi+0530
This judgment contains 18 signed pages.
State Vs. Vinod FIR No. 445/19 17 of 18
ANNEXURE #
Prosecution Name of Witness Description
Witnesses.
PW-1 SI Pardeep IO of the case.
PW-2 Ct. Pawan Along with the complainant.
PW-3 HC Sanjay Complainant of the case.
Exhibit Description of The Witness who proved
No. Document or attested the document
1 FIR No. 445/19 admitted U/s 294 Cr.P.C Ex. P-1.
2. DD No. 50B admitted U/s 294 Cr.P.C Ex. P-4.
3. DD No. 2A admitted U/s 294 Cr.P.C Ex. P-3.
4. Certificate U/s 65B admitted U/s 294 Cr.P.C Ex. P-2.
5. Excise Result admitted U/s 294 Cr.P.C Ex. P-5.
6. Site Plan PW-1
7. Seizure memo PW-1
8. Form M29 PW-1
9. Disclosure PW-1
Note # As per the direction of the Hon'ble Supreme Court of India in Manojbhai Jethabhai Parmar (Rohit) Vs. State of Gujarat, Crl. Appeal No. 2973 of 2023 State Vs. Vinod FIR No. 445/19 18 of 18