Delhi District Court
State vs Bablu on 6 November, 2025
IN THE COURT OF SH. TUSHAR GUPTA
ACJM(NE)/KKD COURTS: DELHI
CNR No. DLNE02-004217-2019
CR Case No: 2497/2019
STATE Vs. Bablu
FIR No: 127/2019
PS: Sonia Vihar
JUDGMENT
a) Sl. No. of the case : 2497/2019
b) Date of institution of the case : 09.09.2019
c) Date of commission of offence : 20.06.2019
d) Name of the complainant : Ct. Satpal
e) Name & address of the
accused : Bablu
S/o Sh. Hem Chander
R/o 100 Foota road, Loni 2 No. Rajeev
Garden, Loni, UP
f) Offence charged with : Section 33 Delhi Excise Act
g) Plea of the accused persons : Pleaded not guilty.
h) Final arguments heard on : 06.11.2025
i) Final order : Acquitted
j) Date of Judgment : 06.11.2025
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Briefly stated, case of the prosecution is that on 20.06.2019, at about 04:30 PM, from main Sabarpur village road to Anuvrat colony main gali, Delhi within the jurisdiction of PS Sonia Vihar, accused was found in possession of one white katta containing 3 petties containing 150 quarter bottles (180 ml each) of illicit liquor labelled with NV Rasila Santara Masaledar Desi Sharab for sale FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 1/9 Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:10 +0530 in Haryana only" and 19 "Night Blue for sale in Haryana only" without any permit or license.
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 to which she pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined 1 witness. In brief, PW/ASI Pramod Kumar was IO in the present case and examined as PW-1 who had allegedly reached the spot after receiving the information about the recovery. He got the FIR registered and carried out entire proceedings (i.e. recording of statement of Ct. Satpal, preparing tehrir, site plan, seizure memo, arrest and personal search memo, disclosure statement etc). PW1/complainant expired and other were admitted and dropped.
4. Thereafter Prosecution evidence was closed. Statement of accused was recorded u/s 313 r/w 281 Cr.PC, 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.
5. Final Arguments heard. Case file perused.
6. It is argued by Ld. APP for the state that from the ocular and documentary evidence on record, prosecution has proved beyond reasonable doubt that accused was found in possession of illicit alcohol FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 2/9 Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:17 +0530 without permit and submitted that accused be convicted of the offence charged.
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 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. 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:
FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 3/9Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:24 +0530 "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 the commission of such an offence."
11. 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.
12. 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.
13. 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) FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 4/9 Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:30 +0530 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.
14. From the overall testimony of the witness, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witness 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 witness that for what reason they were unable to gather support from public or independent witness 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.
15. 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 witness 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 witness. In the present case, it is evident that no such sincereefforts 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 against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 5/9 Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:35 +0530 assist the police in investigation as a citizen, which is an offence under the IPC."
16. In the instant case, the recovery was effected from the accused at the busy spot. Hence, it could not be said that the public witness were not present at the spot at the time of recovery. In fact, as per the testimonies of prosecution witness, public persons were present at the spot at the time of recovery. However, surprisingly, the Prosecution Witness did not explain the reason as to why public witness 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 witness despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
17. 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 FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 6/9 Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:42 +0530 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.
18. 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 witness. 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 DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
19. 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 FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 7/9 Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:00:48 +0530 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".
20. 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.
21. Perusal of record shows that prosecution witness have deposed that FIR was registered after preparation of seizure memo, accordingly, FIR number could not have surfaced on that seizure memo, however, the seizure memo bears the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged. That being so, benefit arising out of such a situation must necessarily go to the accused. Reference be made to the judgment of Hon'ble Delhi High Court in the case of Giri Raj v. State, 83 (2000) DLT 201.
22. It is true that evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution is not sufficient to fortify the edifice of the prosecution's case and the prosecution fails to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. As such the accused deserves acquittal in the present case.
23. 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.
FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 8/9
Digitally
signed by
TUSHAR
TUSHAR GUPTA
GUPTA Date:
2025.11.06
17:00:53
+0530
24. Hence, accused Bablu is acquitted for the offence u/s 33 of Delhi Excise Act.
Digitally
signed by
TUSHAR
TUSHAR GUPTA
GUPTA Date:
2025.11.06
17:00:57
+0530
Announced in the open court (Tushar Gupta)
on 06rd November, 2025 ACJM/NE/KKD Courts/Delhi
06.11.2025
It is certified that the present judgment runs into 9 pages and each page bears my signature.
Digitally signed by TUSHAR TUSHAR GUPTA GUPTA Date:
2025.11.06 17:01:02 +0530 (Tushar Gupta) ACJM/NE/KKD Courts/Delhi 06.11.2025 FIR No. 127/2019 PS Sonia Vihar State vs Bablu Page No. 9/9