Delhi District Court
State vs Deepak Kumar on 12 November, 2025
IN THE COURT OF MS. JYOTI NAIN
JUDICIAL MAGISTRATE FIRST CLASS-07 : ROHINI COURTS: DELHI.
State Vs. Deepak & Anr.
FIR No. 115/2016
PS: Swaroop Nagar
U/s 33 r/w 52 of Delhi Excise Act
Date of Institution of case :-13.03.2019
Date of Judgment reserved :- 12.11.2025 (at 02:00 pm)
Date on which Judgment pronounced :-12.11.2025 (at 04:00 pm)
JUDGMENT
Case Number : 1348/2019
CNR Number : DLNT020026982019
Date of Commission of offence : 07.03.2016
Name of the complainant : Smt. Mala W/o Sh. Bhagwan Singh
Name of the accused persons : (1)Deeapk S/o Sh. Ram Kishan.
(2) L. P. Gautam S/o K.D.Gautam
Offence complained of : 33 r/w section 52 of Delhi Excise Act
Plea of accused persons : Not guilty
Final Order : Acquitted
State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 1 of 12
BRIEF REASONS FOR DECISION :
1. The case of the prosecution shorn of unnecessary details is that on 07.03.2016 at about 07:20 am, gali No. 12, Nathupura, Delhi within the jurisdiction of PS Swaroop Nagar, 81 quarter bottles of Asli Santra Masaledar Sharab for sale in Haryana only 180 ml Govt of Haryana mentioned on cap of bottles were found in scooter bearing no. DL-1SN-3998 which belonged to accused persons Deepak and L.P.Gautam and thus, according to prosecution, accused persons committed an offence punishable under Section 33 r/w Section 52 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 persons in compliance of section 207 Cr.P.C.
4. Arguments on charge were heard and charge against accused persons was framed under section U/s 33 r/w Section 52 of the Delhi Excise Act, 2009 by this court vide order dated 14.08.2023. Thereafter, accused persons pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution examined six witnesses.
6. PW1 is HC Vikas Rana PSI No. 28104409. present posting at Central Zone PCR.
He deposed that on 17.03.2016, he was posted at PS Sawroop Nagar as a Constable. On that day, HC Vinod Kumar Sharma had received the call and he was State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 2 of 12 alongwith him on my duty. Thereafter, they went to 1/2 Nathu Colony, Swaroop Nagar, Delhi, where they saw one Bajaj Scooter bearing no. DL-1SM-3998 in abundant condition. IO had called the caller who had called at 100 number. The key of the scooter was in the scooter. The caller had told the IO that scooter belongs to Parag Dairy Milk Booth. After that IO asked the passer by public persons to join the investigation but none of them joined the same and left from there after revealing their genuine reasons. Without wasting the time, he and IO checked the said scooter dickey front side and back side and found 81 quarter bottles make of Asli Santra Masaledar Desi Sharab for sale in Haryana only. IO had collected one sample bottle out of 81 quarter bottles. IO put the remaining 80 quarter bottles in the katta and sealed the katta with white colour cloth sealed with the seal of RK. IO also sealed sample bottle in the same manner with the seal of RK. Again said, the seal is VK not the RK. After use, seal was handed over to him by the IO. IO had filled the Form -29 at the spot. IO had seized the scooter vide seizure memo Ex.PW-1/A bearing his signature at point A. IO seized the illicit quarter bottles vide seizure memo Ex.PW- 1/B bearing his signature at point A. IO prepared tehrir and handed over the same to him for registration of FIR at about 10:45 am. After that, he went to police station and handed over the tehrir to the Duty Officer. Duty Officer handed over copy of FIR at about 11:25 am to him. Thereafter, he went to the spot and he handed over original tehrir and copy of FIR to the IO. After that second IO HC Sant Lal reached at the spot. HC Sant Lal had prepared the site plan at the instance of HC Vinod Kumar which is Ex. PW-1/C. After that, he deposited the scooter and other case property at the malkhana of PS as per the direction of IO. IO recorded his statement.
This witness was duly cross-examined by Ld. Defence Counsel.
7. PW2 is SI Vinod Kumar, No. 4489-D, PS Bhalswa Dairy.
He deposed that on 17.03.2016, he was posted at PS Sawroop Nagar as a Head constable. On that day, he had received the call and he alongwith Ct. Vikas, went to 1/2 Nathu Colony, Swaroop Nagar, Delhi, where, they saw one Bajaj Scooter bearing State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 3 of 12 no. DL-1SM-3998 in abundant condition. He had called the caller, who had called at 100 number. The key of the scooter was in the scooter. The caller had told him that scooter belongs to Parag Dairy Milk Booth. After that, he asked 4-5 public persons to join the investigation but none of them joined the same and left from there after revealing their genuine reasons. Without wasting the time, he checked the said scooter dickey front side and back side and found 81 quarter bottles make of Asli Santra Masaledar Desi Sharab for sale in Haryana only. He had collected one sample bottle out of 81 quarter bottles. He put the remaining 80 quarter bottles in the katta and sealed the katta with white colour cloth sealed with the seal of VK. He also sealed sample bottle in the same manner with the seal of VK. After use, seal was handed over to Ct. Vikas. He had filled Form-29 at the spot, which is Ex. PW2/A bearing his signature at point A. He had seized the scooter vide seizure memo Ex. PW-1/A bearing his signature at point B. He seized the illicit quarter bottles vide seizure memo Ex. PW-1/B bearing his signature at point B. He prepared tehrir which is Ex.PW2/B bearing his signature at point A and handed over the same to Ct. Vikas for registration of FIR. Thereafter, Ct. Vikas alongwith HC Sant Lal (2 nd IO) came back on spot. He handed over case property and documents to 2nd IO and left the spot.
This witness was duly cross examined by Ld. Defence counsel.
8. PW-3 is ASI Sant Lal, No. 305/OND, MACT Cell, OND.
He deposed that on 17.03.2016, he was posted at PS Swaroop Nagar as Head Constable. On that day, investigation of the present case was marked to him and tehrir was handed over to him. Thereafter, he went to the spot i.e. Nathu Colony near ganda nala. At the spot, he met with HC Vinod and he handed over him one scooter and case property. Thereafter, he prepared site plan same which is Ex.PW-1/C bearing his signature at point A. Thereafter, they returned to the PS and he deposited the case property in the malkhana. Thereafter, he enquired about the particulars of the scooter from the transport authority and there he found that said scooter was registered in the name of MK Gautam. Thereafter, he served Notice u/s 133 MV Act on MK Gautam State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 4 of 12 which is Ex. PW-3/A bearing his signature at point A. In reply to the said Notice, Mr. MK Gautam is stated that he sold out the said scooter to one person namely Harish and he also handed over him original sale receipt of said scooter in favour of Mr. Harish Kumar. Same is Ex. PW-3/B. Thereafter, he investigated Mr. Harish regarding the said scooter and he told him that he sold the said scooter to one person namely Mr. Deepak Kumar and he also supplied him the delivery receipt of the said scooter and same is Ex. PW-3/C. Thereafter, he sent the sample of case property to the Excise office, ITO, Delhi. After receiving the report, he got transferred to Communication Department and in pursuance he handed over the file to MHCR.
This witness was duly cross-examined by the Ld. Defence Counsel.
9. PW-4 is ASI Jagmohan, No. 4730/DAP, Fifth Battalion.
He deposed that on 31.03.2016, he was posted in PS Swaroop Nagar as Constable. On the instruction of IO HC Santlal, he collected sealed sample and deposited the same at Excise office ITO Delhi vide road RC No.61/21/16. After deposit case property with Excise office, he came back to police station, where he deposited receipt in malkhana. IO recorded his statement. Till the sample of the case property remained in his possession, no tampering was done with the sample.
This witness was duly cross-examined by the Ld. Defence Counsel.
10. PW-5 is HC Saroj No. 919/OND, PS S.P Badli.
She deposed that in the year 2016, she was posted at PS Swaroop Nagar. The present case file was marked to her by concerned SHO for further investigation. She collected the result from excise office which was positive. After completion of investigation, she prepared charge-sheet and filed the same before the Hon'ble court.
This witness was not cross-examined by the Ld. Defence Counsel despite opportunity being given.
State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 5 of 12
11. PW-6 is Sh. Arun Kumar S/o Sh. Rohtash Kumar, R/o Khasra no. 19/23, Gali no. 2, A 1 Block, Amrit Vihar, Delhi.
He deposed that he was residing at the above mentioned address alongwith his family members. He was having the work of sale purchase/ repairing of of scooters and motor-cycles. On 06.10.2013, he purchased scooter bearing No. DL-1SM-3998 from L.P. Gautam for a sum of Rs.4500/- and after two years the aforesaid scooter was sold to Deepak S/o Ram Kishan and the relevant documents alongwith the delivery receipts were given to Deepak Kumar. The delivery receipt is Mark A. This witness was duly cross-examined by the Ld. Defence Counsel.
12. Perusal of the record shows, that 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. 115/2016 which is Ex. A1, Certificate U/s 65 B of Indian Evidence Act, which is Ex. A2, DD No. 8-B dated 17.03.2016 which is Ex. A3, Excise Control Laboratory Result which is Ex. A4 and contents of Register No. 19 and 21 regarding the deposition of the case property.
13. After completion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. r/w section 281 Cr.P.C. were recorded. All incriminating material brought on record were put to the accused persons, to which they denied the allegations made against them and claimed themselves to be innocent and pleaded that they have been falsely implicated in this case. Accused persons denied to lead any evidence in their defence and the same was closed.
14. 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 State and Ld. Counsel for accused and have carefully perused the record.
State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 6 of 12
15. It is argued by the Ld. APP for the State that State has proved its case beyond reasonable doubt and that accused persons were 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 persons.
16. Per contra, it is argued by the Ld. counsel for the accused persons 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 persons and that they are falsely implicated in present case and that there is no independent evidence against them.
17. 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, in the defense of the accused persons. Accused persons are entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused persons to acquittal.
18. In the present case, prosecution was duty bound to prove the possession of the illicit liquor with accused persons. Same is sought to be proved by the recovery memo and testimony of the witnesses. Incident happened at about 07:20 AM and it is admitted fact that public persons were available at the spot, which is evident from the testimony of PW1 and PW2, who stated in their examination in chief, that IO had requested public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses.
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19. 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 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".
20. 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 State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 8 of 12 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".
21. 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 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].
22. 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. State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 9 of 12
23. 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.
24. Another material thing which is required to be discussed about the case of prosecution is that on 17.03.2016, PW1 and PW2 were on patrolling duty, meaning thereby, that at the relevant time, they were not in the PS and it seems, that outside the PS, then as per Punjab Rules, they being on duty was required to enter their departure & arrival to & from the police station 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.
25. But, in the present case, this provision appears to have not been complied with in respect of departure and arrival entry of PW1 and PW2. Prosecution has failed to State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 10 of 12 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 and PW2 at the spot. Hence, it creates doubt in the prosecution story.
26. 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 i.e. IO ASI Vinod Kumar deposed in his cross-examination that " It is correct that I have not prepared separate handing over memo regarding seal".
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".
27. 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 State Vs. Deepak etc FIR No. 115/2016 PS Swaroop Nagar 11 of 12 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. All the lapses in investigation creates doubt on the very recovery of illicit liquor. Furthermore, the prosecution itself brought a witness i.e. PW6 Arun Kumar in the dock who admitted that he had purchased the scooter bearing no.DL-1SN-3998 from accused L.P. Gautam and had sold the same to accused Deepak. The copy of delivery receipt is mark A. Going by the same logic, on the basis of which accused Deepak has been made an accused in this case, the prosecution should have made PW6 as an accused instead of a prosecution witness. Prosecution in this case is itself admitting that accused L.P. Gautam had sold of the vehicle to Arun Kumar before the alleged recovery of illicit liquor from it. Also, photocopy of delivery receipt by PW6 reflecting receiving of scooter by accused Deepak does not bear the name of seller and the same has been strongly disputed by accused Deepak. The said receipt has never been sent to FSL for examination to verify the signatures of accused Deepak thereon.
Thus, in view of the aforesaid discussion, this court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons, accordingly, accused persons namely Deepak and L.P. Gautam are hereby acquitted for offence under section 33 r/w 52 The Delhi Excise Act, 2009. Case property be confiscated to the State as per rules and the same be destroyed.
29. File be consigned to record room.
30. This Judgment consists of 12 pages and all pages bear my signature.
Announced and dictated directly
JYOTI Digitally signed
by JYOTI NAIN
Date: 2025.11.12
into the computer in open court NAIN 17:23:56 +0530
(JYOTI NAIN)
on 12th Day of November, 2025 JMFC-07/North District
Rohini Courts, Delhi
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