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Delhi District Court

Ashutosh Kumar vs State on 18 December, 2025

 IN THE COURT OF PRINCIPAL DISTRICT & SESSIONS JUDGE
       WEST DISTRICT : TIS HAZARI COURTS : DELHI


Criminal Revision No. 277/2025
CNR No. DLWT01-007764-2025


Ashutosh Kumar
S/o. Sh. Shambhu Prasad
R/o. 17, Pratap Nagar
Malka Ganj, Delhi - 110007.                                        . . . . Revisionist

         Versus

State of NCT of Delhi                                              . . . . Respondent


         Date of institution                        :         04.08.2025
         Arguments heard on                         :         05.12.2025
         Date of judgment                           :         18.12.2025


JUDGMENT

1. The present revision petition has been filed under Section 438 read with Section 440 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity, 'BNSS') assailing the impugned order dated 28.05.2025, passed by Ld. JMFC-02 (West), THC, Delhi in criminal case No. 75080/2016 titled as State v. Ashutosh Kumar, vide which the application filed by the revisionist/accused for discharge was dismissed.

2. The facts leading to the filing of the revision petition are that :

2.1 FIR No. 1296/2015 under Section 38 of the Excise Act was registered on the allegations that on the surprise inspection of restaurant M/s Haze Restaurant, West Gate Mall, Raja Garden, New Delhi by the team of the Excise Inspector on 02.09.2015 at about 4.50 p.m., 10 liquor/beer bottles were found in unauthorized possession in the licensed premises of the said restaurant. It is further alleged that the said liquor/beer bottles were in unauthorized possession in violation of Section 38 of Delhi Excise Act, 2009. During inspection, the revisionist was present and all the 10 bottles were seized by the police.

2.2 The revisionist being the General Manager along with Sh.Ashok Kumar, who is the owner of the said restaurant, were charge sheeted after completion of investigation in the above stated FIR. After taking cognizance, the Ld. JMFC summoned the revisionist and Sh. Ashok Kumar, and dismissed their application for discharge vide the impugned order dated 28.05.2025.

3. The impugned order has been challenged on the following grounds:-

(i) The Ld. JMFC dismissed the application for discharge filed by the revisionist in a mechanical manner and listed the matter for CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 2 of 12 framing charges against the revisionist without appreciating the law in the correct perspective.

(ii) The Ld. JMFC failed to appreciate that a show cause notice was issued on 02.10.2015, which was duly replied with proper reasons and the same was accepted by the Deputy Commissioner of Excise as a reasonable and fair clarification for storage of 10 bottles of the liquor/beer.

(iii) The Ld. JMFC failed to appreciate that one show cause notice issued by Excise Department was duly replied with proper clarifications and reasons, and the same was accepted by the Ld. Deputy Commissioner (Excise) as a reasonable and fair clarification for storage of beer. The penalty for a sum of Rs.12,608/- has already been paid, so the revisionist cannot be tried again for the same offence as per Section 300 of Cr.PC.

(iv) The Ld. JMFC failed to appreciate the fact that all the witnesses to be examined in the present matter are police witnesses and no independent/ public witness has been cited as a witness in the chargesheet, and this fact itself creates a doubt regarding the prosecution case. Further, there is no evidence on record that the police have tried to join any independent witness during raid which took place in broad day light.

(v) The Ld. JMFC has failed to appreciate that in view of Section 56 of the Excise Act, wherever an offence is committed by the company, the company has to be necessarily made an accused.

The liability, of the person in charge of and responsible to the company for conduct of its business, is only vicarious in nature. In the present matter and as per the charge sheet, the revisionist was allegedly an employee working in the capacity of General Manager in M/s Haze Restaurant (a unit of Shri Sai Entertainments). The company/partnership firm M/s Haze Restaurant and Shri Sai Entertainments have not been made accused in the present matter. There is no iota of evidence on record that the revisionist has received the beer bottles or the bottles were found in possession of the revisionist in his personal capacity.

(vi) The Ld. JMFC has failed to appreciate that at the stage of framing charge, there should be a "grave suspicion" against the revisionist, not mere suspicion which means that the evidence presented should create a strong belief or reasonable inference that the revisionist is involved in the alleged offence. The Court needs to consider the evidence and determine if it warrants proceeding against the revisionist.

(vii) The Ld. JMFC has failed to appreciate that even if all the allegations against the revisionist are presumed to be true, then also no offence is made out against the revisionist.

4. No reply was filed by the respondent. Arguments were addressed by Sh. Arvind Nagar, Ld. Counsel for the revisionist CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 4 of 12 and Sh. Balbir Singh, Ld. Substitute Addl. PP for the State/respondent.

5. The impugned order dated 28.05.2025 reads as under:

"Vide this order the application for discharge filed on behalf of the accused persons is being decided.

The application for discharge, has been filed inter alia on the grounds that the illicit liquor (10 beer bottles) were delivered to the accused persons by reason of a mere mistake of fact as the same were to be delivered to some other person and subsequently, the accused persons have also paid penalty amounting to Rs. 12,608/- as per the orders of the Deputy Commissioner, Excise Department vide order dated 12.10.2015 and the present matter is unsustainable by virtue of the right of the accused against persons against double jeopardy as contained in Section 300 Cr.P.C.

Heard. Record perused.

Perusal of the record reveals that primary allegations against the accused persons is that they were found in unauthorized possession of illicit liquor (10 beer bottles), in contravention of the Section 38 of the Delhi Excise Act as the excise duty was not paid qua the same. The primary contention of the accused persons is that they received the beer bottles inadvertently, by reason of a mistake of fact, as the same were to be delivered to some other person, which in the considered opinion of this court is a matter of trial and can only be established, if proper evidences to this effect are led by the parties. As regards the order dated 12.10.2015, passed by Deputy Commissioner, Excise Department, as per which the accused was directed to pay a penalty of Rs.12,608/- and a finding in favour of the accused persons was given, cannot be regarded as a trial before a court of competent jurisdiction, which resulted in either conviction or acquittal and, thus, the benefit of the provisions contained u/s 300 Cr.P.C cannot be granted to the accused at this stage.

In light of the above discussion, this court is of the considered opinion that there are prima facie grounds suggesting the commission of offence punishable u/s 38 Delhi Excise Act by the accused persons.

Resultantly, application for discharge filed on behalf of the accused persons is devoid of any merits and is accordingly dismissed.

Put up for framing of charges against the accused persons on 07.08.2025."

6. Section 38 of the Delhi Excise Act reads as under :

"38. Penalty for possession of liquor unlawfully imported, non-duty paid, etc.-Whoever has in his possession any liquor knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months and fine which may extend to one lakh rupees."

7. As per the case of the prosecution as mentioned in the chargesheet on 02.09.2015 at about 4.50 P.M., on surprise inspection of the M/s Haze Restaurant by the team of excise inspector 10 bottles of liquor/beer was found in unauthorized possession in the licenced premises in violation of Section 38 of the Delhi Excise Act. During the inspection, the revisionist who is the General Manager of the said restaurant was present. The owner of the restaurant Sh. Ashok Kumar joined in the investigation and informed that the non duty paid liquor which was seized by the excise raiding team were of another licensed restaurant and by mistake they had been delivered to his restaurant about which they had filed their reply to the Excise Commissioner, the order of whom they gave to the IO. The charge sheet was accordingly filed against the revisionist and Sh. Ashok Kumar under Section 38 of the Delhi Excise Act.

8. The prosecution case as made out from the chargesheet is that the revisionist being the General Manager of the said restaurant was found in possession of non-duty paid liquor knowing the same to have been unlawfully imported or knowing that the prescribed duty was not paid thereon. The owner of the restaurant has given his statement that the said liquor which was for another restaurant was inadvertently delivered to M/s Haze restaurant. This claim cannot possibly be a ground for discharge and the accused persons would have to prove the same in evidence.

9. As per the revisionist, he cannot be tried in the present case as his trial is barred by virtue of the principle of double jeopardy under Section 300 Cr.P.C. The Hon'ble Supreme Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat and Ors. MANU/SC/0321/2012, with regard to application of the said principle, has held that:

"5. ........The sole issue raised in this appeal is regarding the scope and application of doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 300 Code of Criminal Procedure; Section 26 of the General Clauses Act; and Section 71 I.P.C.

Section 300(1) Code of Criminal Procedure. Reads:

A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 7 of 12 on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof. Section 26 of the General Clauses Act, 1897 reads: Provision as to offences punishable under two or more enactments. - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

Section 71 of I.P.C. reads:

Limit of punishment of offence made up of several offences. - Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.

6. In Maqbool Hussain v. State of Bombay MANU/SC/0062/1953 : AIR 1953 SC 325, the Constitution Bench of this Court dealt with the issue wherein the central issue arose in the context of the fact that a person who had arrived at an Indian airport from abroad on being searched was found in possession of gold in contravention of the relevant notification, prohibiting the import of gold. Action was taken against him by the customs authorities and the gold seized from his possession was confiscated. Later on, a prosecution was launched against him in the criminal court at Bombay charging him with having committed the offence under Section 8 of the Foreign Exchange Regulation Act, 1947 (hereinafter called 'FERA') read with the relevant notification.

In the background of these facts, the plea of "autrefois acquit"

was raised seeking protection under Article 20(2) of the Constitution of India, 1950 (hereinafter called the 'Constitution'). This Court held that the fundamental right which is guaranteed under Article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy" i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim "nemo debet bis punire pro uno delicto", that is to say that no one ought to be twice punished for one offence. The plea of "autrefois convict"

or "autrefois acquit" avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of "autrefois acquit" is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.

7. The Constitution Bench of this Court in S.A. Venkataraman v. Union of India and Anr. MANU/SC/0133/1954 : AIR 1954 SC 375, explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words 'prosecuted' and 'punished' are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attractive.

8. In Om Prakash Gupta v. State of U.P. MANU/SC/0130/1957 : AIR 1957 SC 458; and State of Madhya Pradesh v. Veereshwar Rao Agnihotri MANU/SC/0102/1957 : AIR 1957 SC 592, this Court has held that prosecution and conviction or acquittal under Section 409 Indian Penal Code do not debar trial of the accused on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content.

(Emphasis added)

10. The order of the Deputy Commissioner Excise Department dated 12.10.2015, vide which M/s Haze Restaurant was directed to pay a penalty of Rs. 12,608/-, inter alia states as under:

"Considering the duty evasion part, it is seen that these belong to other Restaurants as per details mentioned above. As such there is no issue of duty evasion involved in the matter. However, it is evident that the licensee M/s Haze CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 9 of 12 restaurant has not properly received the supply of abovementioned bottles of Kingfisher Lager Beer by scanning through the Excise Supply Chain Information Management System (ESCIMS), which resulted in possession of Beer bottles which were meant for supply to some other licensee restaurant.

In view of the above, I Praveen Mishra Deputy Commissioner (Excise)/Licensing Authority hereby impose a penalty of Rs. 10,000/- only on M/s Haze Restaurant (a unit of Shri Sai Entertainment) S.F. 22-01 to 22-06, Second Floor, West Gate Mall, Rajouri Garden, Delhi for the aforesaid lapse and further direct the Licensee to receive all the supply of Liquor by scanning through the ESCIMS without fail and keep the stock as per rule, so that such a mistake does not occur in future. The show called notice dated 10.09.2015 accordingly stands withdrawn."

11. The above order of the Deputy Commissioner (Excise)/Licensing Authority has not been passed in a trial before the Court which has resulted in either a conviction or acquittal for the benefit under Section 300 Cr.P.C. Neither the adjudication before the Deputy Commissioner (Excise)/Licensing Authority is a prosecution nor is the said authority a Court and so the rule of double jeopardy cannot be invoked. The penalty proceedings are different from the trial before the Court. Also, the above order concludes that M/s Haze restaurant has not properly received the supply of bottles of 7 Kingfisher Lager Beer (not the other 3 bottles of Breezer 275 ml) by scanning through the Excise Supply Chain Information Management System (ESCIMS), which resulted in possession of Beer bottles which were meant for supply to some other licensee restaurant and accordingly in view CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 10 of 12 thereof, the Deputy Commissioner (Excise)/Licensing Authority imposed a penalty of Rs. 10,000/- upon M/s Haze Restaurant (and not on the revisionist) while the accused/revisionist is facing trial before the Court of the Ld. JMFC for being in possession of liquor bottles (including the beer bottles) knowing the same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid thereon. Before the Deputy Commissioner (Excise), the penalty was imposed upon Haze Restaurant while in the present case it is the revisionist who is being tried for a distinct offence. Thus, the rule of double jeopardy does not apply. Also, just because all the witnesses are police witnesses is no ground for discharge. The owner of the restaurant Sh. Ashok Kumar was named as an accused in column No. 11 in the charge sheet and charge under Section 38 of the Delhi Excise Act has been framed against him. Just because the revisionist was an employee does not exonerate him. He was working in the capacity of General Manager and was incharge of the affairs of the said restaurant thus, in terms of Section 38 of the Delhi Excise Act, it cannot be said that no prima facie case is made out against him.

12. In view of the above observations, no infirmity is found in the impugned order. Accordingly, the revision petition is dismissed. Copy of this judgment be sent to the Ld. Trial Court CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 11 of 12 alongwith the Trial Court record. Revision file be consigned to Record Room post compliance.

Announced in Open Court       ADITI
                                        by ADITI
                                        CHOUDHARY

on 18th day of December, 2025 CHOUDHARY Date: 2025.12.18 16:11:00 +0530 (Dr. Aditi Choudhary ) Principal District & Sessions Judge (West) Tis Hazari Courts : Delhi CR No. 277/2025 Ashutosh Kumar v. State of NCT of Delhi Page 12 of 12