Delhi District Court
State vs Satender Kumar Etc on 15 May, 2025
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IN THE COURT OF ASHISH KUMAR MEENA
JMFC-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.: 235/2016
U/S: 33 DELHI EXCISE ACT
PS: FATEHPUR BERI
STATE
VS.
(1). SATENDER KUMAR, S/O SH. RAMHET,
R/o Village-Puthli, PS-Hathin, District-Palwal, Haryana.
(2). RAVI AHERVAR, S/O SH. CHARAN,
R/o Village-Rithoj, PS-Sohna, District-Gurgaon, Haryana.
(3). DEEPAK, S/O SH. SHYAM LAL,
R/o H. No.18, Mandi Village, New Delhi.
..... ACCUSED PERSONS
1. Sr. No. of the case : 2761/2017
2. The date of offence : 25.04.2016
3. The name of the complainant : HC Anil Kumar
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 30.04.2025
6. The date of order : 15.05.2025
7. The final order : Acquitted
JUDGMENT
1. Briefly stated, Satender Kumar and Ravi Ahervar ("Accused no.1 & Accused no.2") are facing trial for the Digitally signed ASHISH by ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR MEENA Date:
MEENA 2025.05.19 15:59:18 +0530 Page 2 of 19 allegations that on 25.04.2016, at about 07:30 p.m., at Dera Mor, Near Petrol Pump, Fatehpur Beri, New Delhi, within the jurisdiction of PS-Fatehpur Beri, both accused were found carrying twenty four cartons containing 48 quarter bottles each of illicit liquor labelled as 'Asli Santra Masaledar Deshi Sharab, FOR SALE IN HARYANA ONLY, 180 ML' in car bearing registration no. DL-9CM-7016 make Alto (silver colour), without any licence or permit or pass, thereby accused persons have committed an offence punishable u/s 33 Delhi Excise Act.
2. It is also an allegation that Deepak ("Accused no.3"), on 25.04.2016, being owner of the above-mentioned car, allowed co-accused Satender and Ravi Ahervar to carry illicit liquor in his car. Thereby accused Deepak has committed an offence punishable u/s 33/52 Delhi Excise Act.
3. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused persons were summoned after taking cognizance of offence. The accused persons were charged u/s 33/52 of the Delhi Excise Act and accordingly, the charges were framed against the accused persons to which accused persons pleaded not guilty and claimed trial.
4. In order to substantiate the allegations, prosecution examined total six witnesses. PW-1 HC Ravinder Singh (IO of this case) has deposed that on 25.04.2016, at around 10:30 pm, he received one therir and copy of FIR from Ct. Puran and investigation of the case was marked to him. Thereafter, he alongwith Ct. Puran went to the spot i.e. near petrol pump at Dera Mor. There he met with Ct. Satbir, HC Anil and two Digitally signed by FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. ASHISH ASHISH KUMAR KUMAR MEENA Date:
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accused namely Satender and Ravi Ahirvar. HC Anil handed over custody of case property, sample, seizure memo, form M-29, accused persons. He prepared the site plan at the instance of HC Anil vide Ex.PW1/A. He recorded supplementary statement of HC Anil and released him from the spot. Thereafter, he arrested accused Ravi and Satender vide arrest memo Ex.PW1/A. He conducted personal search vide Ex.PW1/C and Ex.PW1/D. Thereafter, he recorded disclosure statement of both the accused persons vide Ex.PW1/E and Ex.PW1/F. Thereafter, he alongwith other staff members came back to the police station with both the accused and case property. He deposited the case property in malkhana. Thereafter, he got medical examination of both the accused persons. He recorded statement of the witnesses under Section 161 Cr.P.C. Next day, he produced both the accused persons in the court. During investigation, he got sent seized samples to Excise Control Laboratory, Vikas Bhawan New Delhi through Ct. Ravi Raj for chemical examination. He obtained ownership of the seized car from State Transport Authority Palam vide Mark-PS as per which Sh. Rishipal was the registered owner of the car. On 06.08.2016 he served notice under Section 160 Cr.P.C. to the registered owner of the car vide Ex.PW1/G. On 07.08.2016, he inquired registered owner of the seized car namely Rishipal. He informed him that on 10.05.2015, Rishipal sold his car bearing no. DL9CM7016 to accused Deepak, S/o Sh. Shyam Lal, R/o Mandi Village. He handed over him delivery receipt for 29-30 and affidavit vide P1, P2, P3 and P4. Thereafter, he recorded his statement under Section 161 Cr.P.C. On 10.10.2016, he inquired accused Deepak, who informed him that he bought the car for his relative i.e. accused Satender. During investigation, he collected excise result. After completion of the Digitally signed by ASHISH ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR MEENA MEENA Date:
2025.05.19 15:59:30 +0530 Page 4 of 19 investigation, he prepared charge sheet and submitted the same before the Court.
5. PW-2 HC Anil Kumar (Complainant) has deposed that on, he was on day emergency duty from 08:00 am to 08:00 pm. At around 07:00 pm, he alongwith Ct. Satbir were coming back to the PS after attending one call at Dera Village. That call was given to him by DD No.30A. When they reached near Petrol pump at Dera More then they met with Ct. Puran who informed him that he got intimation from secret informer that one Alto Sliver color Car is about to come from the side of Dera Mor, which is having illicit liquor in it, he further told him that if immediate steps will be taken then the illicit liquor can be taken into custody. Thereupon, he informed the same to SHO over phone who directed him to constitute one raiding party and to take necessary action. Thereafter, he asked 4-5 passers by to join the raiding party but none of them joined the same on pretext of one or another excuse and left the spot without disclosing their names and addresses. Thereafter, he without wasting much time constituted one raiding party of which Ct. Satbir, Ct. Puran, secret informer and he was members. At around 07:30 pm one alto bearing no. DL-9CM7016 silver colour came from the Dera Village side on seeing which secret informer pointed out towards that car. On his indication, he indicated to stop the car. On his indication driver of the aforesaid car try to flee away but the car was stopped after closing the barricades. On stopping the car two persons sitting in the car were inquired. The driver of the car disclosed his name as Satender and the person sitting on the conductor seat disclosed his name as Ravi Ahirvar. Accused Satender was got caught by Ct. Puran and accused Ravi Ahirvar Digitally signed by ASHISH ASHISH KUMAR MEENA FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR Date:
MEENA 2025.05.19 15:59:36 +0530 Page 5 of 19 was caught by Ct. Satbir. He stationed the car on road side and checked it. In the car there were cartons. He again asked the passers by to join the investigation but all refused to join the same on pretext of one or another excuse and left the spot without disclosing their names and addresses. He took out cartons out of the car and check the same in street light. In total it were 24 cartons. Each carton was opened by him. Each carton was having 48 quarters and on each quarter Asli Santra Masaledar Deshi Sarab for sale in Haryana only, 180 ml was written. He took out one quarter from each carton as sample. He tied the mouth of each quarter with white color cloth and sealed the same with the seal of AK. The quarters were given mark 1A to 24A. I kept rest of the aforesaid illicit liquor again into the cartons. The cartons were closed with the help of plastic tape. He tied the cartons with white color cloth and sealed the same with the seal of AK. Cartons were given mark 1S to 24 S. At spot, he filled form M-29 vide Ex.PW2/A and sealed it with the seal of AK. He seized aforesaid samples, rest of the illicit liquor in cartons and form no.M-29 vide Ex.PW2/B. After use, he handed over the same to the Ct. Puran. He seized the aforesaid car used by the accused persons vide Ex.PWC. He prepared rukka and endorsed the same vide Ex.PW2/D. He handed over the rukka to the Ct. Puran and sent him to the police station for registration of the FIR. At around 10:45 pm HC Ravinder and Ct. Puran came to the spot. He handed over the custody of both the accused, seized illicit liquor alongwith samples, form-M-29 and the car to him. HC Ravinder prepared the site plan at his instance vide Ex.PW1/A. He recorded his statement under Section 161 Cr. PC and released him.
Digitally
signed by
ASHISH
ASHISH KUMAR
KUMAR MEENA
FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. MEENA
Date:
2025.05.19
15:59:41
+0530
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6. PW-3 HC Pooran Singh has deposed that on 25.04.2016, he was coming from the arrangement at Bhati Mines and when he reached near Dera Mod, a secret informer met him and informed that an Alto, silver color car is about to come from the side of Dera Mod which is having illicit liquor in it and if immediate action will be taken, he can be caught. Meanwhile HC Anil Kumar and Ct. Satbir met him to whom he shared the information after which HC Anil Kumar informed the then SHO over phone regarding the aforesaid information who directed them to constitute one raiding party and to take necessary action.
They made efforts to make the public persons join as a witness of raiding party but none of them agreed siting the personal difficulties. They did not serve any notice due to paucity of time. Thereafter, they all stood near patrol pump and waited for the aforesaid car to come. At around 07-7:30 PM one Alto, silver color came from the Dera Village side. A secret informer pointed out towards the car. On his indication the said car was stopped. On stopping the car two persons seating in the car were inquired. The driver of the car disclosed his name Satender and the person seating on the conductor seat disclosed his name as Ravi Ahirwal. They further checked the boot of the said car and found there were 24 cartons. They again asked the passerby to join the investigation but all refused to join on pretext of one another excuse and left the spot without disclosing their names and addresses. They took out all the cartons out of the car and found that each carton were containing 48 quarter bottles of 180 ML with the lebel of 'Asli Santra Desi Sharab' for sale in Haryana only. HC Anil Kumar took out one quarter as a sample from each carton and tied the mouth of each quarter with white color cloth and with seal of AK. The sample quarters were given marking as Digitally signed FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. ASHISH by ASHISH KUMAR KUMAR MEENA Date:
MEENA 2025.05.19 15:59:46 +0530 Page 7 of 19 1A to 24A. HC Anil Kumar further kept the remaining liquor again into the carton and in each carton he kept 47 quarters. The cartons were closed with the help of plastic tape. HC Anil Kumar tied the carton with white color cloth and sealed the same with the seal of AK, and cartons were given marking as IS to 24S. Thereafter, HC Anil Kumar filled form M-29. Thereafter, the samples and the rest of the illicit liquor was seized vide Ex.PW2/B. The Alto car from which the illicit liquor was recovered was also seized vide Ex.PW2/C. HC Anil Kumar prepared Rukka and handed over the same to him for registration of FIR. He went to the PS and got the FIR registered. After registration of FIR, he along with HC Ravinder went to the place of incident. HC Anil Kumar handed over the custody of both the accused, seized illicit liquor and the seized car to HC Ravinder to whom the further investigation of this case was marked. Thereafter, HC Ravinder prepared the site plan. Thereafter, the accused persons were arrested and their personal search was conducted. The arrest memo of Satender Kumar and Ravi Ahirwal vide Ex.PW1/B and Ex.PW1/A respectively. The personal search memo of Satender Kumar and Ravi Ahirwal vide Ex.PW1/D and Ex.PW1/C respectively. The disclosure statement of Satender Kumar and Ravi Ahirwal were recorded by the IO vide Ex.PW1/F and Ex.PW1/E respectively. He got the medical examination of both the accused persons conducted and thereafter both the accused persons were brought to lock-up, PS Mehrauli. It is to be noted that PW-4 HC Satbir has supported the version of prosecution and deposed on the same lines as PW-3 HC Pooran Singh. Both the witnesses were duly cross-examined by the Ld. Counsel for accused.Digitally signed by ASHISH
ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. MEENA KUMAR Date:
MEENA 2025.05.19 15:59:52 +0530 Page 8 of 19
7. PW-5 HC Ravi Raj has deposed that on 18.05.2016, he was posted as Constable at PS-Fatehpur Beri. On that day, he joined the investigation of this case. On that day, IO directed him to deposit the exhibits into Excise office as per direction vide RC No. 52/21/16. He took twenty four exhibits upon which seal of "AK" was there and deposited the same into Excise Lab, L-
Block, Vikas Bhawan. After depositing the same, he came back to the PS and handed over the receipt to MHC(M). There was no tampering with the exhibits till the time exhibits were in his possession. IO had recorded his statement u/s 161 Cr.P.C. The witness was duly cross-examined by the Ld. Counsel for accused.
8. PW-6 Sh. Rishipal has deposed that he was the registered owner of car bearing registration no. DL-9CM-7016. On 10.05.2015, he sold the said vehicle to a person namely Deepak, S/o Sh. Shyamlal, R/o H. No.18, Mandi Village and he does not have any responsibility regarding the said vehicle after the said date. He handed over delivery receipt, Form-29, Form-30 and Affidavit to the IO. The said delivery receipt is Ex.PW6/A. The said Form-29 and Form-30 is Ex.PW6/B & Ex.PW6/C respectively. The said affidavit is Ex.PW6/D. IO had recorded his statement. The witness was duly cross-examined by the Ld. Counsel for accused.
9. It is pertinent to mention that the accused persons have also admitted the genuineness of FIR, DD No.30A dt. 25.04.2016, DD No.32B dt. 25.04.2016 and Chemical Examination Report without admitting the content of the same. Prosecution evidence was thereafter closed.
10. On completion of prosecution evidence, statement of Digitally signed by ASHISH FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. ASHISH KUMAR MEENA KUMAR Date:
MEENA 2025.05.19 15:59:59 +0530 Page 9 of 19 accused persons were recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused persons, to which they stated that they are innocent and have been falsely implicated in this case and all the exhibits are false and manipulated. Further, the accused persons did not wish to lead defence evidence.
11. Final arguments heard. Case file perused.
12. Short point for determination before this court is as under:-
"Whether on 25.04.2016, at about 07:30 p.m., at Dera Mor, Near Petrol Pump, Fatehpur Beri, New Delhi, within the jurisdiction of PS-Fatehpur Beri, both accused were found carrying twenty four cartons containing 48 quarter bottles each of illicit liquor labelled as 'Asli Santra Masaledar Deshi Sharab, FOR SALE IN HARYANA ONLY, 180 ML' in car bearing registration no. DL-9CM-7016 make Alto (silver colour), without any licence or permit or pass, thereby accused persons have committed an offence punishable u/s 33 Delhi Excise Act"
"Whether on 25.04.2016, accused Deepak, being owner of the above-mentioned car, allowed co- accused Satender and Ravi Ahervar to carry illicit liquor in his car. Thereby accused Deepak has committed an offence punishable u/s 33/52"
13. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution Digitally signed by ASHISH ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR MEENA Date:
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case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused persons and hence prayed for conviction of accused persons as per the evidence produced by the prosecution witnesses.
14. It is argued by the Ld. Counsel for the accused persons that the accused persons are innocent and falsely implicated in the present matter. Ld. Counsel submitted that the Prosecution has failed to prove recovery made against the accused persons beyond reasonable doubt. Ld. Counsel for the accused persons has pointed out the material contradiction made during the examination of prosecution witnesses. Furthermore, Ld. Counsel for the accused persons submitted that be accused persons are liable to the acquitted in the present case.
15. In the present case accused persons are charged under Section 33/52 of Delhi Excise Act. Before appreciating the evidence in hand, it is important to go through the relevant provision of the Act:-
Section 33. 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 Digitally signed by ASHISH ASHISH FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC.
KUMAR KUMAR MEENA Date:
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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 years and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees.
16. It is also significant to note that Section 52 of Delhi Excise Act presumes that accused persons have committed the offence (u/s 33 of the act) for the possession of which accused persons are unable to account satisfactorily. However, this presumption can be rebutted if proved contrary. It is further to be noted that initial still lies with the prosecution to show that accused persons were found with illicit liquor without any licence. Section 52 of Digitally signed by ASHISH FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. ASHISH KUMAR KUMAR MEENA Date:
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the Act lays down as follows:
Section 52. Presumption as to commission of offence in certain cases:
(1) In prosecution under section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.
(2) XXXXXXX
17. In order to receive the benefit of Section 52 of the Act, the prosecution is duty bound to prove that the accused persons were found in the possession of illicit liquor. As per version of the prosecution, the same is proved by the recovery memo and testimony of the witnesses. However, the manner of conducting inquiry, seizure and search etc. on the spot at the time of detaining the accused persons were and alleged recovery of liquor in this case, makes the prosecution version highly doubtful as there are various material contradictions can be seen in statement of prosecution witnesses.
18. It is the case of prosecution that the complainant HC Anil Kumar alongwith Ct. Satbir and Ct. Puran apprehended the accused persons namely Satender adn Ravi Ahirvar in his car bearing registration no. DL-9CM-7016. Thereafter, HC Anil Kumar checked the vehicle in question and recovered illicit liquor. Thereafter, HC Anil Kumar took out sample bottle from each cartons and sealed the remaining case property with the seal Digitally signed by ASHISH FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. ASHISH KUMAR MEENA KUMAR Date:
MEENA 2025.05.19 16:00:23 +0530 Page 13 of 19 of "AK". He also seized the remaining case property vide Ex.PW2/B. He further seized the car used by the accused persons vide Ex.PW2/C. Thereafter, he prepared the rukka and get present FIR registered through Ct. Puran. Thereafter, the matter was marked to HC Ravinder who came to the spot and further investigated the matter. It is to be noted that the IO/HC Ravinder has not seen the case property as it was already sealed by the complainant HC Anil Kumar. This Court fails to understand as to why the case property was seized and sealed prior to registration of FIR. The prosecution has failed to explain the urgency in conducting the said process of sealing of case property. The possibility of framing the accused persons in false case cannot be ruled out. Such lapse proves to be fatal to the case of prosecution.
19. Furthermore, it is to be noted that accused Deepak has also been made accused in the present matter u/s 33/52 Delhi Excise Act. It is to be noted that IO has not verified the ownership documents of offending vehicle. Evidently, the offending vehicle is registered under the name of one Sh. Rishi Pal. The prosecution has examined Sh. Rishi Pal as PW-6, who has stated that he sold the offending vehicle to accused Deepak on 10.05.2015. However, he does not know if the vehicle was actually transferred in the name of Deepak as per rules. Therefore, the charges u/s 33/52 Delhi Excise Act is not made out against the accused Deepak as the offending vehicle is not registered under his name.
20. Interestingly, all the witnesses have stated that no photograph of the case property was taken at the time of recovery of case property. It is to be noted that the prosecution has placed Digitally signed by ASHISH ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR MEENA MEENA Date:
2025.05.19 16:00:29 +0530 Page 14 of 19 one photograph vide Ex.P4 alleging that the case property was again sealed in the katta recovered from the possession of the accused. However, the prosecution has failed to show who is the author of Ex.P4, as all the witnesses have deposed that they have not taken any photographs of the case property. Further, the prosecution has failed to explain as to why the collective photographs of the case property was not taken prior to sealing of the case property In view of this court, the said lapse and contradiction in investigation proves to be fatal to the case of prosecution.
21. Further, it is deposed by all the witnesses that that they tried to join independent witnesses in the investigation but none of the joined citing personal reasons. As per site plan, the place of incident appears to be busy area and the said incident is stated to have taken place at around 07:30 PM. Further, it is evident from the testimony of the witnesses that accused persons were apprehended alongwith the alleged illicit liquor at public place, but still no public independent person was cited as a witness in this case. Though witnesses have stated in his testimony that some public persons were requested to join, but none of them agreed and it is not clear whether took any effort to give notice to passerby to join them as witnesses but witness did not disclose the names of any such witnesses. IO has also failed to show any effort to include public witnesses in order to prove their case beyond reasonable doubt and inspire the confidence of this court.
22. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi Vs. State 1999(2) C.C. Cases 314 Digitally signed by ASHISH ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR MEENA Date:
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(HC), wherein, 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 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".
23. Similarly, in Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is observed as under:-
"That the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. 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 reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. MEENA Date:
2025.05.19 16:00:41 +0530 Page 16 of 19 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".
24. Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. 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 complied 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 strictly comply with these provisions." [Emphasis supplied]
25. Considering the aforesaid observations made by the Higher Digitally signed ASHISH by ASHISH KUMAR FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR MEENA Date:
MEENA 2025.05.19 16:00:48 +0530 Page 17 of 19 Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above- mentioned facts create serious doubt on the case of the prosecution.
26. Further, as per evidence on record, the seal after use was not given to any independent public person. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh Vs. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. 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."
27. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
Digitally
signed by
ASHISH
ASHISH KUMAR
KUMAR MEENA
FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. MEENA Date:
2025.05.19
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"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."
28. Further, 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, all these departures or the arrival entries have not been proved on the record by the prosecution. In absence of such proof, the presence of the police officials at the spot cannot be believed. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
29. From the aforesaid discussion, it is very clear that the manner in which the inquiry, seizure and search etc. has been conducted on the spot at the time of alleged recovery of liquor, it makes the prosecution version highly doubtful. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution Digitally signed ASHISH by ASHISH FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC. KUMAR KUMAR MEENA Date:
MEENA 2025.05.19 16:01:00 +0530 Page 19 of 19 to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
30. Hence, accused persons namely (1). Satender Kumar, s/o Sh. Ramhet, (2). Ravi Ahervar, s/o Sh. Charan and (3). Deepak, s/o Sh. Shyam Lal stands acquitted for the offence punishable under section 33 of Delhi Excise Act, he has been charged with . Ordered accordingly.
ANNOUNCED IN THE OPEN COURT ON 15.05.2025. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO NINETEEN PAGES AND EACH PAGE BEARS SIGNATURE Digitally signed ASHISH by OF THE UNDERSIGNED.
ASHISH KUMAR MEENA KUMAR Date:
MEENA 2025.05.19 16:01:09 +0530 (ASHISH KUMAR MEENA) JMFC-01/SAKET COURT(SOUTH) NEW DELHI/15.05.2025 FIR No: 235/2016 PS: Fatehpur Beri State Vs. Satender Kumar ETC.