Delhi District Court
State vs Gurmel Singh on 19 February, 2025
Dated: 19.02.2025
IN THE COURT OF MS. SANYA DALAL
JUDICIAL MAGISTRATE FIRST CLASS-I (N/W)
ROHINI COURTS, DELHI
Cr. Case 542262/2016
STATE Vs. GURMEL SINGH
FIR no. 348/2014
PS Sultan Puri
U/s : 33 Delhi Excise Act
JUDGMENT
ID number of the case : DLNW020017082016 Date of commission of offence : 25.03.20214 Date of institution of the case : 10.02.2016 Name of the complainant : HC Shivesh Kumar Name of accused and address : Gurmel Singh S/o Sh.
Bhagwan R/o H. No.
F-4/498, Sultanpuri.
Offence complained of or proved : U/s 33 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 19.02.2025
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Briefly stated, case of the prosecution is that on 25.03.2014 at about 04.25 PM in front of H.No. F-4/498, Digitally signed SANYA by SANYA DALAL DALAL 2025.02.19 Date:
12:40:13 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 1 of 14 Dated: 19.02.2025 Sultanpuri, Delhi, the accused namely Gurmel Singh was allegedly found in possession of 36 bottles of illicit liquor as per seizure memo Mark A. Thus, he had committed the offences U/s 33 Delhi Excise Act.
2. Upon completion of investigation charge sheet u/s 173 Cr.P.C. was filed and the accused was consequently summoned. Charge u/s 33 Delhi Excise Act was framed against the accused on 11.04.2017 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined 05 witnesses
(a) PW-1 HC Vinod was the MHCM who had deposited the case property vide entry no. 6924/14 which is Ex. PW1/A.
(b) PW-2 HC Naushad has deposed that on 25.03.2014, he alongwith Ct. Anil and HC Shivesh were on patrolling duty in the area of F Block, Sultanpuri, Delhi. He deposed that while they were patrolling, a secret informer had informed them about the selling of illicit liquor at F block Sultanpuri. On the said information 3-4 public persons were asked to join the investigation but none agreed and left the spot without disclosing their names and addresses. They reached at premises no. 4/498 and the secret informer had pointed out towards the person who was sitting near the stair case of the said premises. On seeing them, the accused tried to escape. On suspicion, the accused was checked and three cartons of illicit liquor were found from Digitally signed SANYA by SANYA DALAL DALAL Date: 2025.02.19 12:40:21 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 2 of 14 Dated: 19.02.2025 his possession. All the three cartons were put into a katta after drawing of three samples which were serial no. 1 to 3. The same was sealed with the seal of SKS. The seal was handed over to Ct. Anil after its use. IO Shivesh Kumar has prepared the tehrir and handed over to him for registration of the FIR. He went to the PS and got the present FIR registered. Thereafter the IO has seized the illicit liquor vide memo Ex. PW-2/A. The accused was arrested vide arrest memo Ex. PW-2/B. The disclosure statement of the accused was recorded which was Ex. PW-2/D. The witness has correctly identified the case property as well as the accused.
During cross examination, the witness has deposed that the family members of the accused were present at the spot at the time of his arrest. The witness has denied deposing as falsely.
(c) PW-3 HC Santosh has deposited the sample of the case property on 21.04.2014 vide RC no. 149/21/14.
(d) PW-4 HC Anil was the officer on patrolling duty alongwith Ct. Naushad/PW-2. The testimony of PW-4 is exactly same is that of PW-2 and is not reproduced for the sake of brevity.
During cross examination, the witness has deposed that before the registration of FIR the IO had filled form M-29 and no handing over memo of the seal was prepared.
(e) PW-5 HC Shivesh has deposed that on 25.03.2014, he alongwith Ct. Anil and Ct. Naushad were on patrolling Digitally signed SANYA by SANYA DALAL DALAL Date: 2025.02.19 12:40:28 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 3 of 14 Dated: 19.02.2025 duty in the area of F Block, Sultanpuri, Delhi. He deposed that while they were patrolling, a secret informer had informed them about the selling of illicit liquor at F block Sultanpuri. On the said information 3-4 public persons were asked to join the investigation but none agreed and left the spot without disclosing their names and addresses. They reached at premises no. 4/498 and the secret informer had pointed out towards the person who was sitting near the stair case of the said premises. On seeing them, the accused tried to escape. On suspicion, he had checked the accused and three cartons of illicit liquor were found from his possession. All the three cartons were put into a katta after drawing of three samples which were serial no. 1 to 3 by him. The same was sealed with the seal of SKS. The seal was handed over to Ct. Anil after its use. He had prepared the tehrir and handed over to Ct. Naushad for registration of the FIR. Ct. Naushad went to the PS and got the present FIR registered. Thereafter he had seized the illicit liquor vide memo Ex. PW-2/A. The accused was arrested vide arrest memo Ex. PW-2/B. The disclosure statement of the accused was recorded which was Ex. PW-2/D. The witness has correctly identified the case property as well as the accused.
During cross examination the witness had deposed that before the registration of FIR, he had filled form M-29 as well as prepared the pullanda of the case property.
Digitally signedSANYA by SANYA DALAL DALAL Date:
2025.02.19 12:40:36 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 4 of 14 Dated: 19.02.2025
4. The accused had admitted the genuineness of the recording of the present FIR as well as the Excise report which were Ex. PX-1 and PX-2. Consequently, the witnesses were dropped accordingly.
5. Prosecution evidence was closed. Statement of accused was recorded u/s 313 r/w 281 Cr.PC on 14.01.2025 wherein all the incriminating evidence was put to the accused, to which he refused the allegations and stated that he has been falsely implicated in this case and recovery of case property has been falsely implanted upon him. Further, the accused did not wish to lead defence evidence.
6. It is argued by Ld. APP for the state that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt accordingly, the accused shall be convicted. He further argued that from the entire evidence led by the prosecution, it is clearly established that illicit liquor without any permit/license was recovered from the possession of the accused person.
7. Per contra, it is argued by the Ld. Counsel for the accused that accused is completely innocent and recovery of case property has been falsely planted upon him. It is further submitted by Ld. Counsel that non joinder of public witness despite availability casts shadow of doubt on prosecution story. It is further argued by Ld. Counsel for the accused that tampering with the contents of the sealed Digitally signed by SANYA SANYA DALAL Date:
DALAL 2025.02.19 12:40:43 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 5 of 14 Dated: 19.02.2025 parcel cannot be ruled out as seal was not handed to the independent witness. At the end, it is submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt and therefore, the accused is liable to be acquitted of the alleged offence.
8. I have heard the rival submissions and have also carefully gone through the entire material available on record and evidence led on behalf of the prosecution.
9. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
10.Section 33 of The Delhi Excise Act, 2009 provides penalty for unlawful import, export, transport, manufacture, possession, sale etc. of any intoxicant or liquor.
"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 warehouse; (c) bottles any liquor for purposes of sale; (d) uses, keeps or has in his possession any material, still, untensil, 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 Digitally signed SANYA by SANYA DALAL DALAL Date: 2025.02.19 12:40:50 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 6 of 14 Dated: 19.02.2025 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."
11.Before a person can be held liable for commission of any offence, the prosecution has to establish the guilt beyond reasonable doubt and for the same, the alleged recovery in the present case is to be proved beyond reasonable doubt.
12.It is apposite to mention that sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced:
"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) Where any animal, vessel, cart or other vehicle is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded against and punished accordingly, unless he satisfies the court that he had exercised due care in the prevention of Digitally signed SANYA DALAL by SANYA DALAL Date: 2025.02.19 12:40:59 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 7 of 14 Dated: 19.02.2025 the commission of such an offence."
13.But this presumption is rebuttable and accused can rebut the same by either referring to the prosecution's evidence or by adducing defence evidence. Also, it should be noted that the words "for the possession of which he is unable to account satisfactorily" used in Section 52(1) of the Delhi Excise Act clearly reveal that as a pre-requisite for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recovery of the said alleged articles from the possession of the accused. It is only after the prosecution has proved the possession of the alleged articles by the accused that the accused can be called upon to account for the same.
14.However, for the reasons mentioned hereinafter, the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of the Delhi Excise Act can be raised against the accused in the present case.
15.It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. SANYA byDigitally signed SANYA DALAL Date: 2025.02.19 DALAL 12:41:08 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 8 of 14 Dated: 19.02.2025
16.From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
17.The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. 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 shop keepers 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 Digitally signed SANYA by SANYA DALAL DALAL Date:
2025.02.19 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 9 of 14 12:41:14 +0530 Dated: 19.02.2025 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."
18.In the instant case, the recovery was effected from the accused at the busy spot. Hence, it could not be said that the public witnesses were not present at the spot at the time of recovery. In fact, as per the testimonies of prosecution witnesses, public persons were present at the spot at the time of recovery. However, surprisingly, both the PWs did not explain the reason as to why public witnesses were not examined during the course of investigation. They only stated that the public persons refused to join the investigation. This reason given by the PWs is neither sufficient nor plausible. Neither the details of those public persons were brought on record nor any legal action was taken against those persons under relevant sections of law who had declined to assist the police in investigation. If the public persons were really present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them. Therefore, it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts Digitally makes the alleged recovery very doubtful. signed by SANYA SANYA Date:
DALAL DALAL 2025.02.19 12:41:21 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 10 of 14 Dated: 19.02.2025
19.Further, the prosecution did not even bring on record necessary DD entries to prove departure/arrival of the police officials from/at the police station. At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. II. The following matters shall amongst others, be entered:-(c) 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. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
20.Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that;
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the Digitally signed SANYA by SANYA DALAL FIR No. 348/2014 State Vs. Gurmel Singh Page No. 11 of 14 DALAL Date:
2025.02.19 12:41:30 +0530 Dated: 19.02.2025 DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
21.In present case, the seal was neither handed over to an independent witness. No explanation has come on record as to why seal handing over memo was not made or seal was not handed over to an independent witness. 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".
22.Therefore, in view of the above, this creates further doubts in the case of prosecution as to whether the case property allegedly recovered from the accused has not been tampered with.
23.No handing over memo of the seal was prepared.
In the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same.
As per evidence available on record, the seal after use was not given to any independent public person. Moreover, there is no seal handing over memo on record. Further, there is nothing on record to prove whether the Digitally signed SANYA by SANYA DALAL DALAL Date:
2025.02.19 12:41:39 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 12 of 14 Dated: 19.02.2025 said seal was ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi 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. ...... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
24.No photography of case property was carried out by the investigating agency.
Also, the testimony of all the prosecution witnesses is completely silent upon the aspect of the photography of the case property. Accordingly, no photographs of the case property were taken at the time of recovery. In Manjeet Singh v State (2014) 214 DLT 646 Hon'ble High Court of Delhi has observed that detailed punchnama containing the inventory should be prepared and photographs of the entire lot should be taken. It was further observed in Para 75 that the sample alongwith the photographs and punchnama would be sufficient evidence during trial. In the present case, no punchnama was produced. No photographs of the entire lot were produce. In this regard though Section 60 of the Excise Act provides that non production of the case property does not effect the conviction, however, at the Digitally signed SANYA by SANYA DALAL DALAL Date: 2025.02.19 12:41:46 +0530 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 13 of 14 Dated: 19.02.2025 same time the provisions also laid down those samples and the photographs of the confiscated property are to be preserved to meet evidentiary requirements. Without production of any photographs and sample bottle of the case property, the standard cannot be said to be met beyond reasonable doubt.
25.Therefore, in view of the above discussions and findings, I find that the prosecution has failed to prove the guilt of the accused in the present case beyond reasonable doubt. Hence, the accused Gurmel Singh S/o Sh. Bhagwan Singh is acquitted for the offence u/s 33 of Delhi Excise Act.
26.Bail bonds filed by the accused earlier stands extended towards compliance of section 437A Cr.PC and they shall remain in force for the period of six months from today.
27.File be consigned to record room after due compliance.
Announced and dictated in Digitally signed by the open court on this day SANYA SANYA Date:
DALAL DALAL 12:41:58 2025.02.19 i.e. 19th February, 2025 +0530 (Be uploaded forthwith) (SANYA DALAL) JMFC-01/North-West District Rohini Court, Delhi 19.02.2025 FIR No. 348/2014 State Vs. Gurmel Singh Page No. 14 of 14