Delhi District Court
State vs Rakesh on 21 April, 2025
THE COURT OF MS. SUKRITI SINGH
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
ROOM NO. 268, TIS HAZARI COURTS, DELHI
STATE
VERSUS
RAKESH
CASE No. 8044/2019
FIR No. 87/2019
P.S. - Khyala
U/S- 33/38 Delhi Excise Act,
2009
1.Date of commission of offence: 19.03.2019
2. Name of the Complainant : Ct. Raj Kumar
3. Name of the accused, and his parentage and residence : Rakesh S/o Sh. Radhey Shyam, R/o Shop No.188, DDA Market, Khyala, New Delhi
4. Date when judgment : 01.04.2025 was reserved
5. Date when Judgment : 21.04.2025 was pronounced
6. Offence Complained of : Section 33/38 of Delhi or proved Excise Act 2009
7. Plea of accused : Pleaded not guilty
8. Final Judgment : Acquitted FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 1
1. BRIEF FACTUAL POSITION:-
1.1 The brief facts of the case of the prosecution are that on 19.03.2019, at about 09:20 PM at DDA Market, Shop No.188, Khyala, Delhi within the jurisdiction of Police Station - Khyala, accused Rakesh was found in possession of two plastic sacks containing 100 quarter bottles of 'Cash Malta Masaledar Desi Sharab for sale in Haryana only' each without any license, permit or pass and in contravention of the Delhi Excise Act, 2009.
Case property was seized and the present case was registered, starting the investigation in the present matter.
1.2. After completion of investigation, chargesheet was filed on 14.10.2019 indicting the accused for commission of the offence U/s 33/38 of Delhi Excise Act, 2009. Ld. Predecessor took cognizance and copy of the chargesheet in compliance with Section 207 CrPC was supplied on 14.10.2019.
1.3. Charge for the offence U/s 33/38 of Delhi Excise Act, 2009 was framed against the accused on 04.05.2023 to which he pleaded not guilty and claimed trial. On 04.05.2023, proceedings u/s 294 CrPC were also conducted wherein the accused admitted copy of FIR No.87/2019 dated 19.03.2019, certificate u/s 65 B of IEA, DD No.64 A dated 19.03.2019, RC No. 63/21/19 and excise result dated 14.06.2019.
FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 2
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 04 witnesses in total, the details whereof along with documents exhibited thereby are given as under:
S. Name of Documents Dates of Dates of
No. Prosecution Exhibited in examination- cross-
witnesses Evidence. in-chief. examination
PW- HC Raj Kumar (i) Seizure 08.11.2023 08.11.2023
1 memo -
Ex.PW1/A
(ii)
Recording of
statement of
PW-1 -
Ex.PW1/B
(iii) Site plan
- Ex.PW1/C
(iv)
Disclosure
statement of
accused -
Ex.PW1/D
(v) Personal
search memo
- Ex.PW1/E
(vi) Arrest
memo -
Ex.PW1/F
(vii) Case
FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 3
property -
Ex.P1
(ix)
Confiscation
no.Con.1410
0/2019/3868-
69 dated
06.09.2019
alongwith
photograph
of case
property -
Ex.P2 (colly)
- Ex.P2
PW- Ct. Dhauliya NIL 28.02.2024 28.02.2024
2 Ram
PW- HC Kuldeep (i) Tehrir - 02.07.2024 02.07.2024
3 Singh Ex.PW3/A
PW- HC Roop NIL 20.03.2025 20.03.2025
4 Singh
2.2 PW-1 was HC Raj Kumar who deposed that on 19.03.2019 he was
posted at PS Khyala as constable and was on duty. On that day, he alongwith Ct. Dhauliya Ram were on patrolling duty in the area of PS Khyala. At around 09.20 pm, when they reached at DDA Market Shop No.188, Khyala, they saw one person alongwith two plastic kattas. They found him suspicious and he was apprehended by them. On being asked, FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 4 the said person revealed his name as Rakesh. Thereafter, the abovesaid kattas were checked and they were found containing quarters bottles of illicit liquor. Thereafter, PW-1 transmitted the abovesaid information to the Duty Officer, PS Khyala and on the basis of the same, Ct Kuldeep came to the spot and they handed over the custody of accused alongwith abovementioned kattas containing illicit liquor to him. HC Kuldeep checked the said kattas and they were found to be containing 100 quarter bottles in each katta bearing the label of 'Cash Malta Masaledar Desi Sharab for sale in Haryana only' 180 ml each. Thereafter, out of the said 200 quarter bottles, one quarter bottle each was taken out as sample from each katta and moored with white cloth from the bottleneck and sealed with the seal of 'KS'. Then one sample quarter bottle was given serial no.S1 and katta was given serial no.A1. The other sample quarter bottle was given serial no.S2 and the katta was given serial no.A2. Form M-29 was prepared by HC Kuldeep and after seizure, the seal was handed over to PW-1.
Thereafter, HC Kuldeep recorded statement of PW-1 and on the basis of the same, tehrir was prepared by HC Kuldeep and was handed over to Ct. Dhulia Ram for registration of FIR. In the meantime, HC Kuldeep prepared the site plan at the instance of PW-1. Ct. Dhulia Ram went to the police station and got the FIR registered. After registration of FIR, PW-1 returned to the spot and handed over the original tehrir and copy of FIR to HC Kuldeep. Thereafter, the FIR number was put on the abovementioned documents. Thereafter, the disclosure statement of accused was recorded. Accused Rakesh was personally searched and arrested vide memos. After the medical examination of accused Rakesh, he was sent to the lock-up and FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 5 the case property was deposited in the malkhana. IO recorded statement of PW-1. The witness was duly cross-examined by the defence.
2.3 PW- 2 was Ct. Dhauliya Ram who deposed that on 19.03.2019, he was posted at PS Khyala as constable. On that day, he alongwith Ct. Raj Kumar were on patrolling duty in the beat area. At around 09:20 pm, they reached at DDA Market, Khyala where they saw the present accused Rakesh standing near shop no.188 with 2 plastic kattas. Upon suspicion they asked him about the kattas but he could not give satisfactory reply and then Ct. Raj Kumar checked the said kattas and found illicit liquor inside it. Then they apprehended him. Then, Ct. Raj Kumar informed the DO in the police station regarding the said recovery and then IO/HC Kuldeep Singh reached the spot. Thereafter IO asked 4-5 public persons to join the investigation but they refused the same and left the spot without disclosing their name and address Due to paucity of time, no notice was served by IO to them. Thereafter, IO checked the said kattas and they were found containing 100 quarter bottles in each katta of illicit liquor bearing mark of 'Cash Malta Masaledar Desi Sharab for sale in Haryana'. Out of those quarter bottles, one quarter bottle from each katta was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'KS'. The rest of the quarter bottles were put in the same kattas moored with the white cloth and duly sealed with the seal of 'KS'. The said kattas were given serial no.A1, A2 and the sample quarter bottles were given serial no.S1 and S2. After sealing, the seal was handed over to Ct. Raj Kumar. Form M-29 was prepared by the IO and the abovesaid liquor as FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 6 well as sample were seized vide seizure memo. Thereafter IO prepared the tehrir and the same was handed over to PW-2 for registration of FIR. PW-2 went to the police station and got the FIR registered. After registration of FIR, PW-2 returned to the spot and handed over the copy of FIR and original tehrir to IO. IO prepared the site plan. Then IO recorded the disclosure statement of accused. Accused was arrested by IO and was personally searched. The witness was duly cross-examined by the defence.
2.4 PW- 3 was HC Kuldeep Singh who deposed on 19.03.2019, he was posted at PS Khyala as Head Constable. On that day, upon receiving DD NO. 65B, PW-3 went to the spot at shop no.188, DDA Market, Khyala where he met Ct. Raj Kumar and Ct. Dholiya Ram who had apprehended the accused Rakesh with two plastic kattas. Thereafter PW-3 asked 4-5 public persons to join the investigation but they refused the same and left the spot without disclosing their name and address. Due to paucity of time, no notice was served by PW-3. Thereafter, PW-3 checked the said kattas and they were found containing 100 quarter bottles in each katta of illicit liquor bearing mark of 'Cash Malta Masaledar desi sharab for sale in Haryana'. Out of those quarter bottles, one quarter bottle each from each katta was taken out as sample and moored with the white cloth from its bottleneck and sealed with the seal of 'KS'. The rest of the quarter bottles were put in the same kattas moored with the white cloth and duly sealed with the seal of 'KS'. The said kattas were given serial no.A1, A2 and the sample quarter bottles were given serial no.S1 and S2. After sealing, the seal was handed over to Ct. Raj Kumar. Form M-29 was prepared by PW-3 FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 7 and the abovesaid liquor as well as sample were seized. Thereafter, PW-3 prepared the tehrir and the same was handed over to Ct. Dholiya Ram for registration of FIR. He went to the police station and got the FIR registered. After registration of FIR, he returned to the spot and handed over the copy of FIR and original tehrir to PW-3. PW-3 prepared the site plan and recorded the disclosure statement of accused as narrated by him C. Accused was arrested and personally searched vide memos. Thereafter, PW-3 went in search for co-accused near Ganda Nala from where the accused had purchased the illicit liquor recovered in the present case but could not find him. Then, PW-3 had sent accused with Ct. Dholiya Ram to GGSGH for medical examination. Meanwhile PW-3 alongwith Ct. Raj Kumar took the case property to police station and got it deposited in the malkhana. Accused was then brought to the PS by Ct. Dhauliya Ram and then he was sent to lockup after serving him food. PW-3 had also sent the sample to the Excise Department and obtained its result and placed it on record. After completion of the proceedings, PW-3 had filed the chargesheet in the court. The witness was duly cross-examined by the defence.
2.5 PW HC Roop Singh was examined on 20.03.2025 and is hereby referred to as PW-4 who deposed that on 04.04.2019, he was posted at PS Khyala as constable. On that day, MHC (M) had handed him over sealed samples of the present case alongwith RC certificate to deposit the same in the Excise Lab, IO. After depositing the same, PW-4 had obtained the FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 8 recovery and gave it to the MHC (M) The witness was duly cross- examined by the defence.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 The prosecution evidence was closed upon submissions on behalf of the State on 20.03.2025. After the prosecution evidence was closed, the entire incriminating evidence was put to accused person in terms of Section 313 Cr.P.C r/w Section 281 Cr.P.C. and statement of accused was recorded separately on 01.04.2025 wherein he denied the allegations and tendered explanation that he had been falsely implicated and nothing was recovered from his possession. He opted not to lead any DE in his defence.
4. ARGUMENTS:
4.1 Ld. APP for the State has argued that the accused person was apprehended with the case property which was recovered from him and on a combined reading of prosecution witnesses' testimony, offence under section 33/38 of Delhi Excise Act, 2009 stand proved beyond reasonable doubt, against the accused person.
4.2 On the other hand, Ld. Counsel for the accused person has argued that there is no legally admissible evidence against the accused person and that the accused person has been falsely implicated in the present case. He submitted that no videography, photography, examination of any public witness was done hence the recovery was doubtful. He argued that FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 9 prosecution has failed to prove the case against the accused person beyond reasonable doubt and hence, the accused person is entitled to be acquitted.
5. APPRECIATION OF EVIDENCE AND FINDINGS ON MERITS:
5.1 In the present case, the accused person has been charged with the offence U/s 33/38 Delhi Excise Act, for being found in possession of illicit liquor without any licence, permit or pass, and in contravention of the notification issued by the Delhi Government.
5.2 Section 33 of Delhi Excise Act, 2009 states that:
'whoever, in contravention of provisions 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, 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 liquor;
(f) sells any intoxicant, collects, possesses or FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 10 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 with fine, which shall not be less than fifty thousand rupees which may extend to one lakh rupees'.
5.3 Section 38 of Delhi Excise Act, 2009 states that:
'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'.
5.4. From a combined reading of the testimonies of the prosecution witnesses examined and the material placed on record in the final report, several doubts have been created over the factum of alleged recovery from the accused. To begin with, the apprehending witness has failed to place any DD entry regarding his patrolling duty on record despite stating the same to be DD No.42 dated 19.03.2019. It is also abundantly clear that the investigating authority has not made any effort to have any public witness join the proceedings at the time of recovery, arrest or completing other formalities. All the witnesses stated in their respective testimonies that the spot was residential area and the IO had asked public persons to join the investigation but none had joined. No notice was served and their names FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 11 and addresses were not noted.
5.5 When a statutory provision mandates that an independent witness has to be joined in the investigation, the IO is duty bound to comply with the same. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of the prosecuting agency, more so, when the IO failed to even record the names and details of such person, and failed to take any required steps in terms of provisions of Cr.P.C and IPC as noted below.
Section 100(4) Cr.P.C states that,"before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate, or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do"....
Section 37 Cr.P.C. states that, "every person is bound to assist a Magistrate or police officer reasonably demanding his aid-(a) in the taking or preventing the escape of any other person whom such Magistrate or police Officer is authorized to arrest ; or (b) in the prevention of suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 12 public property".
Section 42 Cr.P.C. states that, "when any person who, in the presence of the police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such persons have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate, if so required;
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest, or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction".
Section 187 IPC states that, " whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 13 two hundred rupees, or with both; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
5.6 The importance of getting independent witnesses to join the investigation has been laid out by the superior courts in a catena of judgments. In Roop Chand Vs. State of Haryana reported in 1990 (1) CLR 69, the Hon'ble High Court of Punjab and Haryana observed that such explanations that public persons refused to join the proceedings are unreliable. Moreover, the Hon'ble Supreme Court of India also noted in the case of Pradeep Narayana Vs. State of Maharashtra AIR 1995 SE 930 that failure of the police to get persons from the locality to join the investigation during search creates doubt about its fairness, benefit of which has to be given to the accused. In the present matter, hence, the chances of false implication and planted recovery, as alleged by the defence, cannot be ruled out.
5.7 There are other discrepancies casting a doubt over the prosecution FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 14 chain of events. For instance, PW-1 stated that particulars of the FIR were mentioned on all the documents prepared prior to its registration once the FIR was brought to the spot. PW-2 and PW-3 remained silent on the same. Additionally, PW-3 stated in his examination-in-chief that he had gone in search for co-accused near Ganda Nala from where the accused had purchased the illicit liquor recovered in the present case but could not find him. He also repeated this in his cross-examination by saying all the recovery witnesses had waited at the spot for the co-accused after the apprehended accused had pointed out the place. However, PW-1 & PW-2, who remained at the spot, were silent regarding any co-accused or efforts to trace him.
5.8 Further, PW-3 stated that it was PW-2 who had taken the accused to the hospital for his MLC and meanwhile PW-1 and PW-3 had taken the case property to the police station. However, both PW-1 & PW-2 have remained silent regarding such division of duty or who took the accused to the hospital for his medical examination. In their cross-examination, PW-1 stated that PW-1 & PW-3 had taken the case property to the police station but remained silent on his own role while PW-2 in his cross-examination stated that he as well as PW-1 had taken the accused to the police station. These internal contradictions were never resolved by the prosecution. Further, PW-1 stated that they had left the spot around 11.30 to 12.00 midnight however he also stated that the FIR itself was brought to the spot at 11.30 pm, leaving no time for interim proceedings. The remaining two witnesses stated that they had left the spot at around 12.30 am. Further, FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 15 while PW-1 stated that PW-2 & PW-3 took the case property in their hands to the police station while walking, PW-2 stated that it was taken on foot by the IO. Contradicting them, PW-3 stated that case property was taken by him and PW-1 in an E-rickshaw, but failed to give any particulars of such vehicle. The prosecution never proffered any explanation for such lapses.
5.9 The defence has also pointed out the discrepancies regarding sanctity of seal on the case property. As per the examination of the prosecution witnesses, the seal after use was handed over to Ct. Raj Kumar i.e. PW-1. All the witnesses admitted that no seal handing over memo was prepared. In his cross-examination, PW-3 claimed that the seal was returned to him on the next day at around 05.15 pm but there is no mention of who returned the seal or any record of the same. Admittedly, the seal was never handed over to any independent person and remained with the officials of the same police station, if not the IO himself. Tampering with the case property as well as the seal cannot be ruled out in such a case. No independent witness was examined with respect to the same and no photography or videography was done during recovery, sealing or seizure proceedings. In a case where only police witnesses are available, it becomes incumbent upon such officials to comply with all procedural requirements and failure of the same shall work in the favour of the accused.
5.10 Most importantly, the very existence of violation of the excise policy has been brought into question as only two quarter bottles among FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 16 those seized were sent for chemical analysis and found to contain alcohol. The presence of alcohol in the remaining allegedly recovered liquor bottles has not been proved by the prosecution. As admitted by the prosecution witnesses in their respective cross-examination, neither was the batch number of the remaining bottles noted to correlate them with the sample bottle. Now, since the State has only found two bottles containing 180 ml alcohol each, allegedly recovered from the accused, an offence under Section 33 of the Delhi Excise Act, 2009 cannot be said to have been made out, as the same falls within the maximum permissible limit specified under Rule 20 of the Delhi Excise Rules, 2010. No batch number of the remaining bottles corresponding to the sample were noted to indicate similarity of contents.
5.11 The cardinal principle of law that the prosecution has to prove its case beyond all reasonable doubts, remains the dictating factor. The standard of proof in criminal cases is not preponderance of probabilities but proof beyond all reasonable doubt. It is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is apparent that the case of the prosecution suffers from several glaring loopholes and the possibility of planted or tampered recovery cannot be ruled out. Under the circumstances, it would not be legally viable to convict the accused merely on the basis of testimony of the police officials.
FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 17 Hence, accused Rakesh S/o Sh. Radhey Shyam, R/o Shop No.188, DDA Market, Khyala, New Delhi is acquitted of the offences punishable u/s 33/38 of Delhi Excise Act, 2009.
File be consigned to Record Room after due compliance ANNOUNCED IN THE OPEN SUKRITI Digitally signed by COURT ON 21.04.2025 SUKRITI SINGH SINGH Date: 2025.04.23 09:48:25 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI Containing 18 pages, all signed by the presiding officer SUKRITI Digitally signed by SUKRITI SINGH SINGH Date: 2025.04.23 09:48:21 +0530 (SUKRITI SINGH) JUDICIAL MAGISTRATE FIRST CLASS-04/WEST/ TIS HAZARI COURTS/DELHI FIR No. 87/2019 State Vs Rakesh U/s 33/38 Delhi Excise Act 18