Delhi District Court
State vs Imtiaz@Rahul on 25 March, 2025
1
IN THE COURT OF SH. SAURABH GOYAL,
JUDICIAL MAGISTRATE FIRST CLASS-01, DWARKA COURTS,
DELHI
State Vs. : Imtiaz @ Rahul
FIR No : 55/2023
U/s : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
1. Criminal Case No. : 25834/2024
2. Date of commission of offence : 18.01.2023
3. Date of institution of the case : 13.08.2024
4. Name of the complainant : State
5. Name of accused & parentage : Imtiaz @ Rahul
S/o Sh. Ali Mohd.
6. Offence complained or proved : Section 33 Delhi Excise
Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 06.03.2025
9. Final order : Acquitted
10. Date of final order : 25.03.2025
JUDGMENT
1. The accused Imtiaz @ Rahul is facing trial for offence U/S 33 Delhi Excise Act with the allegations that on 18.01.2023 at about 10:00 PM at near MCI Building Raj Nagar Palam Colony, New Delhi, within jurisdiction of PS Palam Village, the accused was found in possession of plastic Katta containing 100 quarters bottles of fresh mota masaledar desi sharab for sale in Haryana only (180 ML each), without any permit or license. The criminal law was set into motion by registration of FIR against the accused and investigation into the FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 2 case began. After completion of the investigation, the present charge-sheet was filed for conducting trial of the accused for the alleged offence.
2. After taking cognizance of the offence, the copies of charge-sheet was supplied to the accused in compliance of section 207 Cr.P.C. The arguments on charges were heard and charge for offence U/S 33 Delhi Excise Act was framed against accused Imtiaz @ Rahul on 06.11.2024. The accused pleaded not guilty and claimed trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined four prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. were conducted wherein accused admitted the factum of registration of FIR no. 55/2023 alongwith certificate u/s 65 B of Indian Evidence Act as Ex A1 (colly), Excise Report as Ex A2, GD NO. 124A dt. 18.01.2023 as Ex A3, GD No. 0125A dt. 18.01.2023 as Ex A4 and RC No. 65/21/23 as Ex A5, pursuant to the admission made by accused of these documents, witnesses at Sr. No. 1, 5 & 6 were dropped from the list of witnesses.
5. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence U/S 33 of Delhi Excise Act has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused person has stated that there is no legally sustainable evidence against the accused person and that the accused person has been falsely implicated by the police officials and even recovery of FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 3 illicit liquor has not been proved from the possession of accused person as no public witnesses were joined by the police officials during investigation and recovery proceedings. It is further argued that due to the lacunae and incoherency in the story of the prosecution, the accused person be given the benefit of doubt and are therefore, entitled to be acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let us discuss the testimonies of the material prosecution witnesses in brief.
8. PW-1 HC Vinay is the complainant in this case. He deposed that on 18.01.2023, he was posted at PS Palam Village as HC. On that day, he was on beat patrolling duty at beat no. 4. While patrolling at around 10:00 PM, when he reached near MCI Building, Raj Nagar-II, Palam Colony, he saw, one person who was carrying white katta on his head. On seeing him, he started running and HC Vinay apprehended him and asked him about his white katta. Thereafter, he checked the plastic katta and it was found containing illicit liquor. On interrogation, the accused revealed his name Imtiaz @ Rahul. Thereafter, he shared the information with the DO at the PS. Thereafter, ASI Vishal came at the spot, who asked 4-5 persons to join the investigation. However, they refused to join the same and due to the paucity of the time, he was not able to serve notice upon them. Thereafter, IO counted the illicit quarter bottles in the plastic Katta and it was found containing 100 quarter bottles of fresh mota orange masaledar deshi sharab for sale in Haryana 180 ML. IO took out one quarter bottle as sample and seal the same with the white cloth and sealed the same with the seal of VY and write serial no. Pl. Thereafter, IO put all the remaining quarter bottles in the plastic katta and mouth of the katta was tied with the white FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 4 cloth and sealed the same with the seal of VY. Plastic katta was marked Sl no. 1. Thereafter, IO handed over the seal to him. Thereafter, IO filled the form M-29, which is now EX PW-1/A. He seized the illicit liquor vide seizure memo EX PW-1/B. Thereafter, IO recorded his statement, which is now Ex. PW-1/C. On the basis, IO prepared the Rukka and handed over the same to him and he went to the PS and got the FIR registered. He came back to the spot and handed over to IO the copy of FIR and original Rukka, thereafter, IO prepared the site plan which is now EX PW-1/D. During investigation, IO served notice u/s 41 A Cr.PC from the accused which is now Ex. PW-1/E and relieved the accused on Pabandinama, same is Ex. PW-1/f. IO also recorded disclosure statement, same is Ex. PW-1/G. IO also recorded his statement u/s 161 Cr. PC. Thereafter, he alongwith the IO came back to the PS and deposited the case property to MHCM. Accused and case property was correctly identified by the witness in the court.
9. PW-4 ASI Vishal Yadav is the IO of the case. He deposed that on 18.01.2023, he was posted at PS Palam Village as ASI. On that day, he received DD no. 124A and after receiving the same, he went to the spot, where he met with HC Vinay who handed over to him the case property and accused. Thereafter, he checked the plastic katta and it was found containing illicit liquor. On interrogation, the accused revealed his name Imtiaz @ Rahul. Thereafter, he asked 4-5 persons to join the investigation. However, they refused to join the same and due to the paucity of the time, he was not able to serve notice upon them. Thereafter, he counted the illicit quarter bottles in the plastic Katta and it was found containing 100 quarter bottles of fresh mota orange masaledar deshi sharab for sale in Haryana 180 ml. He took out one quarter bottle as sample and FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 5 seal the same with the white cloth and sealed the same with the seal of VY and write serial no. Pl. Thereafter, he put all the remaining quarter bottles in the plastic katta and mouth of the katta was tied with the white cloth and sealed the same with the seal of VY. Plastic katta was marked Sl no. 1. Thereafter, he handed over the seal to HC Vinay after use. Thereafter, he filled the form M-29, which is now EX PW-1/A. He seized the illicit liquor vide seizure memo already EX PW-1/B. Thereafter, he recorded statement of HC Vinay, which is already Ex. PW-I/C. On the basis, he prepared the Rukka which is now Ex. PW- 4/A and he handed over the same to HC Vinay for the registration of the FIR who went to the PS and got the FIR registered. He came back to the spot and handed over to him the copy of FIR and original Rukka, thereafter, he prepared the site plan which is already EX PW-1/D at instance of HC Vinay. During investigation, he served notice u/s 41 A Cr.PC from the accused which is already Ex. PW-1/E and relieved the accused on Pabandinama, same is already Ex. PW-1/f. He also recorded disclosure statement, same is already Ex. PW-1/G. he also recorded statement u/s 161 Cr. PC of witnesses. Thereafter, he alongwith the HC Vinay came back to the PS and deposited the case property to MHCM. Accused and the case property was correctly identified by the witness in the court.
10. PW-2 Ct. Pawan deposed that on 05.04.2023, he was posted at PS Palam as constable. On that day, he collected the exhibits from the MHCM vide RC no. 65/21/2023 and took the same to the excise Lab Vikas Kunj and deposited the same at the excise lab. He handed over the acknowledge receipt to the MHCM.
11. PW 3 ASI Naresh has deposed that in the year 2023, he was posted at PS FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 6 Palam Village as ASI. The investigation of the present case was marked to him for further investigation by the SHO. During investigation, he received the excise result from the excise lab. Thereafter, he got transferred and submitted the case file to the MHCR.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
12. Statement of the accused Imtiaz @ Rahul under Section 281/313 Cr.P.C. was recorded separately on 06.03.2025 in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to not lead evidence in his defence.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
13. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. In the present case, the accused has been indicted for the offence U/S 33 of Delhi Excise Act. In order to prove the liability of accused under Section 33 of the Delhi Excise Act, the prosecution must establish the fulfilment of all the essential ingredients of the offence. The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
"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 license, 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;
FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 7 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 lakh rupees."
i). Doubtful seziure memo and form M-29.
14. A careful reading of the testimony of PW-1 and 4 reflects that even before the Rukka was prepared, the case property i.e. illicit liquor was seized vide Seizure memo Ex. PW-1/B and then, Rukka was prepared and thereafter, upon registration of FIR, PW-4 ASI Vishal Yadav prepared the spot map and conducted further investigation. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of the liquor was prepared, prior to registration of the FIR. Accordingly, it follows that the number of the FIR could not have been mentioned on the seizure memo as the same was prepared prior to registration of FIR however, quite surprisingly, perusal of the seizure memo reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution and no explanation from the prosecution is forthcoming as to how the FIR number surfaced on the document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 8
15. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"...Learned counsel for the state concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW 11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused..."
16. The aforesaid ruling of the Hon'ble High Court of Delhi squarely applies to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the illicit liquor, or that the said document was prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
17. Since in the present case, all the witnesses are police personnel and the necessary safeguards in the investigation have not been followed by the IO, I am of the view that the possibility of false implication of the accused persons FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 9 under the provisions of Excise Act cannot be ruled out at the instance of the police.
ii). The non-joining of any independent / public witness.
18. It is evident from the record that no public witness to the recovery of the liquor has been either cited in the list of prosecution witnesses or has been examined by the prosecution. Apparently, PW-1 HC Vinay has deposed that public persons were present on the spot however, he did not record statement of any public persons. As apparent from record, no notice was served to such public persons. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi v State 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
"...18. It is repeatedly laid down by this Court 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 evidence 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..."
19. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
"...The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 10 prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner..."
20. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also as stated by PWs, admittedly the independent witnesses were available at the time of recovery but they did not join the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after-thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful.
21. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 11 made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
22. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As discussed above and hereinafter, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much-needed corroborative value, to the otherwise uncompelling case of the prosecution.
iii). Possibility of misuse of seal of the investigating officer.
23. As per the prosecution story, after preparing seizure of the case property and the samples of illicit liquor with seal of 'VY', the aforesaid seal was handed over to PW-1 HC Vinay. This fact cannot be ignored that PW-1 HC Vinay was a recovery witness and had apprehended the accused and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that PW-1 HC Vinay had made efforts to handover the seal to any independent witness. Further, no taking over memo is on record to show the genuineness of fact of actual taking over of seal by PW-1 HC Vinay from PW-4 ASI Vishal Yadav. In FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 12 such a factual backdrop, since the seal was given to PW-1 HC Vinay, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
24. In this regard, judgment in case titled as Ramji Singh v 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..."
25. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"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..."
FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 13
26. It is nowhere the case of the prosecution that the seal after use was handed over to any of the independent witness. In view of discussion made above, 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. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
iv). Other infirmities in the prosecution case.
27. In the present case, all the witnesses are police official and no efforts what so ever have been made for associating public persons during the recovery proceedings. Further, no efforts have been made to join any public witness and the place of recovery was also near a public place thus, the witnesses must have been easily available and no explanation has been given as to why no efforts were made for joining public witnesses during investigation.
28. It is also settled law that complainant and IO cannot be same however, in the present case, this principle has not been followed and primarily this investigation was conducted by PW-1 HC Vinay who is complainant in the present case and IO/ASI Vishal Yadav has only prepared site plan and disclosure memo and no explanation has been given by prosecution regarding this fact, which further creates doubts in the story of prosecution.
29. In view of the discussion made above, it is clear that the prosecution has miserably failed to prove the allegations levelled against the accused, more specifically, the recovery of the alleged illicit liquor is not proved beyond reasonable doubt. Therefore, this Court hereby accords the benefit of doubt to the accused person and holds the accused person Imtiaz @ Rahul not guilty FIR No. 55/2023 St. Vs. Imtiaz @ Rahul 14 of commission of the offence in question. Accused Imtiaz @ Rahul is thus, acquitted of the offence U/S 33 of Delhi Excise Act.
30. The bail bonds, if any furnished persons at the time of commencement of trail stands cancelled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands cancelled. Case property if any, shall be disposed of after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to record room after due compliance.Digitally signed by
SAURABH SAURABH GOYAL GOYAL Date: 2025.03.25 Announced in the open court on (Saurabh Goyal) 15:54:05 +0530 this day i.e. 25th March, 2024 JMFC-01 South West District, Dwarka, New Delhi It is certified that this judgment contains 14 pages and each page bears my signatures. Digitally signed by SAURABH SAURABH GOYAL GOYAL Date: 2025.03.25 15:54:08 +0530 (Saurabh Goyal) JMFC-01 South West District, Dwarka, New Delhi FIR No. 55/2023 St. Vs. Imtiaz @ Rahul