Delhi District Court
State vs Ashish Kumar on 21 July, 2025
IN THE COURT OF MS. JYOTI NAIN
JUDICIAL MAGISTRATE FIRST CLASS-07: ROHINI COURTS: DELHI.
FIR No. 156/2019
U/s 33/38 of Delhi Excise Act
PS: Swaroop Nagar
State Vs. Ashish Kumar
Date of Institution of case:- 16.12.2019
Date of Judgment reserved:- 21.07.2025 (at 12:45 pm)
Date on which Judgment pronounced:- 21.07.2025 (at 02:30 pm)
JUDGMENT
Case Number : 6568/2019
CNR Number : DLNT020135212019
Date of Commission of : 05.02.2019
offence
Name of the complainant : Ct. Neeraj Kumar, No. 2088/OND, PIS :
38093445
Name and address of the : Ashish Kumar S/o Sh. Rama Nand
accused R/o H. No. D-862, Gali No. 4, D-block, Nathu
Pura, Delhi.
Offence complained of : 33/38 of Delhi Excise Act
Plea of accused : Not guilty
Final Order : Acquitted
State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 1 of 12
Digitally signed
JYOTI by JYOTI NAIN
Date:
NAIN 2025.07.22
10:02:34 +0530
BRIEF REASONS FOR DECISION :
1. The case of the prosecution shorn of unnecessary details is, that on 02.05.2019 at about 8.05 pm, at D-block, Gali No. 4, Nathupura, Delhi within the jurisdiction of PS Swaroop Nagar, accused was found in possession of one plastic katta containing 104 quarter bottles of illicit liquor make ENA Masaledar Desi Sharab for sale in Haryana only of 180 ML without any permit or license. Thus, according to prosecution, accused committed an offence punishable under Section 33/38 of The Delhi Excise Act, 2009. Thereafter, upon investigation statements of witnesses were recorded. Subsequently, an FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 33 of the Delhi Excise Act, 2009 of the prescribed duty.
3. Copy of charge sheet and annexed documents were supplied to the accused in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against the accused was framed under section U/s 33/38 of the Delhi Excise Act, 2009 by the Ld. Predecessor, vide order dated 12.07.2022. Thereafter, accused pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined three witnesses.
6. PW1 is HC Neeraj, No. 2088/OND, PS S.P. Badli, Delhi.
He deposed that on 02.05.2019, he was posted at PS Swaroop Nagar as a constable. On that day, he was doing patrolling duty in the area Beat No.8, Nathu Pura, Delhi. At about, 08:00 pm, he reached at Ganda Nala, D-Block Gali No.4, Nathupura, Delhi. He Saw that accused Aashish Kumar was carrying one plastic katta on his shoulder and he was going towards Nathupura, Delhi and on seeing him in State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 2 of 12 uniform, he tried to escape from the spot. On suspicion, he apprehended the accused alongwith the plastic katta at a distance of approximately 15-20 steps. He made inquiry from the accused regarding the plastic katta but he could not give satisfactory reply. He checked the plastic katta and the same was found containing quarter bottles of illicit liquor. On inquiry, the accused revealed his name as Aashish Kumar. He gave the information regarding the recovery of liquor in PS Swaroop Nagar, Delhi. After some time, IO HC Md. Ilyas reached at the spot. He handed over custody of the accused and recovered plastic katta of liquor to the IO.
IO requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. IO recorded his statement which is Ex. PW-1/A bearing his signature at point A. IO checked the plastic katta and the same was found containing 104 quarter bottles of illicit liquor make ENA Masaledar Desi Sharab for sale in Haryana only. IO took 01 quarter bottle as sample from the plastic katta and remaining 103 quarter bottles again put into the said plastic katta. IO prepared pullinda of the quarter bottles and remaining quarter bottles of illicit liquor and sealed the pullindas with the seal of MI. IO filled M-29 Form at the spot. After use, IO handed over the seal to him. IO seized the recovered liquor vide seizure memo Ex. PW-1/B bearing his signature at point A. IO prepared rukka and handed over the same to him for registration of FIR. Accordingly, he went to the PS for registration of FIR and got the FIR registered and after registration of FIR, he came back to the spot and handed over the original rukka and copy of FIR to IO. After registration of FIR, IO mentioned the FIR number on the seizure memo of illicit liquor and M-29 Form. IO prepared site plan at the his instance which is Ex. PW-1/C. IO recorded disclosure statement of accused Aashish Kumar which is Ex. PW-1/D bearing his signature at point A. IO arrested and conducted personal search of accused Aashish Kumar vide memos Ex. PW-1/E and PW-1/F respectively both bearing his signature at point A. After medical examination, the accused was put into the lock up and the case property was deposited in the malkhana. IO recorded his supplementary statement.
State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 3 of 12 On 03.07.2019, he collected the sealed sample from the MHC(M) and deposited the same in the Excise Laboratory ITO Delhi vide Road RC No. 84/21/19. Till the sample of case property remain in his possession, no tempering was effected with the same.
This witness was duly cross-examined by Ld. Defence Counsel.
7. PW2 is ASI Mohd. Ilyas, No. 667/SB, posting at Special Branch, Delhi.
He deposed that on 02.05.2019, he was posted at PS Swaroop Nagar as a Head constable. On that day, on receipt of DD No. 35B which is already exhibited as Ex. A2 to him, he reached at the spot i.e. Ganda Nala, D-Block Gali No.4, Nathupura, Delhi where he met with Ct. Neeraj Kumar and he already apprehended the accused Aashish Kumar alongwith the plastic katta of illicit liquor. He handed over the custody of the accused and recovered plastic katta of liquor to him.
He requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. He recorded statement of Ct. Neeraj which is already exhibited as Ex. PW-1/A bearing his signature at point B. He checked the plastic katta and the same was found containing 104 quarter bottles of illicit liquor make ENA Masaledar Desi Sharab for sale in Haryana only. He took 01 quarter bottle as sample from the plastic katta and remaining 103 quarter bottles again put into the said plastic katta. He prepared pullinda of the quarter bottles and remaining quarter bottles of illicit liquor and sealed the pullindas with the seal of MI. He filled M-29 Form at the spot which is Ex. PW- 2/A bearing his signature at point A. After use, he handed over the seal to Ct. Neeraj. He seized the recovered liquor vide seizure memo already Ex. PW-1/B bearing his signature at point B. He prepared rukka which is Ex. PW-2/B bearing his signature at point A and handed over the same to Ct. Neeraj for registration of FIR. Accordingly, he went to the PS for registration of FIR and got the FIR registered and after registration of FIR, he came back to the spot and handed over the original rukka and State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 4 of 12 copy of FIR to him. After registration of FIR, he mentioned the FIR number on the seizure memo of illicit liquor and M-29 Form. He prepared site plan at the instance of Ct. Neeraj which is exhibited as already Ex. PW-1/C bearing his signature at point A. He recorded disclosure statement of accused Aashish Kumar which is Ex. PW-1/D bearing his signature at point B. He arrested and conducted personal search of accused Aashish Kumar vide memos already Ex. PW-1/E and PW-1/F respectively both bearing his signature at point B. After medical examination, the accused was put into the lock up and the case property was deposited in the malkhana. He recorded supplementary statement of Ct. Neeraj.
On 03.07.2019, he sent the sample of case property to Excise Office ITO Delhi vide Road RC No. 84/21/19 through Ct. Neeraj. He recorded statement of Ct. Neeraj.
This witness was duly cross examined by Ld. Defence counsel.
8. PW-3 is ASI Kamlesh Ram, No. 2330/OND, PS NIA, Delhi He deposed that in the month of September 2019, he was posted at PS Swaroop Nagar, where he received the file of present case to investigate. He prepared final charge sheet and submitted before the Court.
This witness was not cross-examined by the Ld. Defence Counsel despite opportunity being given.
9. Vide order dated 18.10.2022, statement of accused was also recorded under section 294 Cr.P.C in which the accused has admitted the document i.e. Registration of FIR No. 156/2019 which is Ex. A1, DD No. 35-B which is Ex.A2, Excise Control Laboratory Result which is Ex.A3, Road Certificate which is Ex. A4 and contents of register No.19 regarding the deposition of case property. Therefore, concerned witnesses are dropped from the list of witnesses.
State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 5 of 12
10. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded vide order dated 20.05.2025. All incriminating material brought on record were put to the accused, to which he denied the allegations made against him and claimed himself to be innocent and he was lifted from his house. He further pleaded that he has been falsely implicated in this case and nothing was recovered from his possession. Accused denied to lead any evidence in his defence and the same was closed.
11 Thereafter, matter was listed for final arguments and arguments were adduced at length by both the parties. I have heard the arguments addressed by the Learned APP for the State and Ld. counsel for accused and have carefully perused the record.
12. It is argued by Ld. APP for the State that State has proved its case beyond reasonable doubt and that accused was found in possession of illicit liquor without permit. It is further stated, that there are ocular and documentary evidence on record to bring home the guilt of the accused.
13. Per contra, it is argued by the Ld. counsel for the accused that non joinder of public witness despite availability casts a shadow of doubt on prosecution story. Moreover, alcohol was not recovered from the possession of accused and that she is falsely implicated in present case and that there is no independent evidence against her.
14. It is a cardinal principle of criminal jurisprudence, that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is suppose to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 6 of 12 in the defense of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
15. In present case, prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at about 08.05 PM and it is admitted fact, that public persons were available at the spot, which is evident from the testimony of PW1, who stated in his examination in chief, that IO had requested 4-5 public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses. The relevant extract of his cross- examination to this effect are as under : -
PW1 i.e. HC Neeraj deposed in his cross examination, " It is correct that IO did not serve notice to public persons who refused to join the investigation".
16. 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 (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 State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 7 of 12 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".
17. 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, 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".
18. Also, in State of Punjab v. Balbir Singh , AIR 1994 SC 1872, the Hon'ble Supreme Court of India 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 State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 8 of 12 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].
19. Considering the aforesaid observations made by the Higher Courts, the omissions / failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
20. In the present case, IO has not joined any public witness at the time of arrest or while completing the formalities despite availability of public persons. There is a possibility, that it was a chance recovery. However, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were admittedly present.
Even then, the IO failed to join any public witness. All the witnesses examined are police witnesses. This casts a shadow of doubt on prosecution story.
21. Another material thing which is required to be discussed about the case of prosecution is that on 02.05.2019, PW1 was on patrolling duty, meaning thereby, State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 9 of 12 that at the relevant time, he was not in the PS and it seems, that outside the PS, then as per Punjab Rules, he being on duty was required to enter his departure & arrival to & from the PS Swaroop Nagar in the DD register of the said PS. Now, as per Chapter 22 Rule 49 of Punjab Police Rules, 1934:-
"22.49 Matters to be entered in Register No. II-The following matters shall, amongst others, be entered:-
(c)The hour of arrival and the 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.
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.
Note:- Lines & Police Posts, where Register no.II is maintained.
22. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1. Prosecution has failed to produce any evidence, whatsoever on record in the nature of documentary entries of the required DD entries, so as to establish the presence of PW1 at the spot. Hence, it creates doubt in the prosecution story.
23. In present case, the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness.
PW-2 ASI Mohd. Ilyas deposed in his cross-examination, that " It is correct that no taking/ handing over memo of seal was prepared by me".
State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 10 of 12 In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court 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".
24. Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
25. All the lapses in investigation creates doubt on the very recovery of illicit liquor from the possession of the accused. The Court is of the considered view that prosecution has not been able to prove the guilt of accused beyond reasonable doubt.
State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 11 of 12 26 In view of the above said description and in the absence of any cogent evidence against accused Ashish Kumar, he is hereby acquitted for offence under section 33/38 The Delhi Excise Act, 2009. Case property be confiscated to the state as per rules and the same be destroyed.
27. File be consigned to record room.
28. This Judgment consists of 12 pages and all pages bear my signature.
Digitally signed JYOTI by JYOTI NAIN
Date:
NAIN 2025.07.22
10:02:40 +0530
Announced and dictated directly
into the computer in open court (JYOTI NAIN)
on 21st Day of JULY, 2025. JMFC-07/North District
Rohini Courts, Delhi
State Vs. Ashish Kumar FIR No. 156/2019 PS Swaroop Nagar 12 of 12