Delhi District Court
State vs Arun@Rahul on 20 May, 2025
Dated: 20.05.2025
IN THE COURT OF MS. SANYA DALAL
JUDICIAL MAGISTRATE FIRST CLASS-I (N/W)
ROHINI COURTS, DELHI
State Vs. Arun @ Rahul
Case No. 545770/2016
FIR No. 308/19
PS: Sultanpuri
U/s : 33/38 Delhi Excise Act
JUDGMENT
ID number of the case : DLNW020147162016 Date of commission of offence : 31.03.2015 Date of institution of the case : 08.11.2016 Name of the complainant : HC Rajbir Singh, No. 129/OD Name of accused and address : Arun @ Rahul S/o Sh.
Surender Kumar R/o H. No. A-5/119, Sultanpuri, Delhi.
Offence complained of or proved : U/s 33/38 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 20.05.2025
Digitally
FIR No. 308/15 State Vs. Arun @ Rahul signed by
SANYA
Page No. 1 of 15
SANYA DALAL
DALAL Date:
2025.05.20
17:10:14
+0530
Dated: 20.05.2025
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Briefly stated, case of the prosecution is that on 31.03.2015 at about 07:30 pm at A-B Extension, Sultanpuri, Delhi, the accused was allegedly found in possession of katta containing 96 quarter bottles of illicit liquor as per seizure memo Mark A. Thus, he had committed the offences U/s 33/38 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 33/38 Delhi Excise Act was framed against the accused on 30.11.2017 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined 05 witnesses as follows:
i. PW-1 Ct. Rampal has deposed that on 31.03.2015, he was posted as Constable at PS Sultanpuri. He deposed that on receipt of 42A, he alongwith Ct. Jitender and IO/ HC Rajbir Singh were on patrolling duty in the area of AB Extension, Sultanpuri, Delhi. He deposed that at about 07:30 pm, they saw one person carrying one white katta. On seeing them the accused tried to escape. On suspicion, they stopped him and upon checking they found two gatta patties of illicit liquor in the said katta. On inquiry, the accused disclosed his name as Arun @ Rahul. Thereafter, IO gave the said information to the Digitally FIR No. 308/15 State Vs. Arun @ Rahul signed by Page No. 2 of 15 SANYA SANYA DALAL DALAL Date:
2025.05.20 17:10:18 +0530 Dated: 20.05.2025 PS. IO asked 4-5 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. Thereafter, he opened the said gatta patties and found 96 quarter bottles of illicit liquor. IO took out two samples from the said recovered illicit liquor and kept the remaining into the said patties and prepared the pullanda of the same and sealed the same with the seal of TP. Seal after use was handed over to him. IO filed Form M-29. IO prepared the seizure memo of recovered illicit liquor vide seizure memo Ex. PW1/A. IO prepared the rukka and handed over the same to Ct. Jitender for registration of FIR. After registration of FIR, Ct. Jitender came back at the spot and handed over to IO. IO prepared the site plan. Further, IO served the notice under Section 41A Cr.P.C. to the accused and the accused was bound down for further investigation Thereafter, the case property was deposited in Malkhana. The witness correctly identified the accused as well as the case property.
During cross-examination, the witness deposed that he alongwith IO had reached at the spot at about 07:30 PM and public persons were present at the spot. No handing over memo of the seal was prepared. They finally left the spot at around 11:45 pm. ii. PW-2 ASI Krishan Kumar has deposed that on 26.10.2016, the investigation of the present case was marked to him. Thereafter, after completion of the FIR No. 308/15 State Vs. Arun @ Rahul Digitally signed by Page No. 3 of 15 SANYA SANYA DALAL DALAL Date:
2025.05.20 17:10:23 +0530 Dated: 20.05.2025 entire investigation, he filed the chargesheet in the court.
The witness was not cross examined despite opportunity being given.
iii. PW-3 HC Parveen has proved the Register No. 19 at column no. 4 vide Entry No. 6190/15 which is Ex. PW3/A and RC No. 114/21/15 which is Ex. PW3/B. The witness was not cross examined despite opportunity being given.
iv. PW-4 Retd. SI Rajbir has deposed that on 31.03.2015, he alongwith Ct. Rampal and Ct. Jitender were on patrolling duty in the area of A-Block, Sultanpuri, Delhi. He deposed that at about 07:30 pm, they reached at mod of A-Block, Sultanpuri where they saw one person who was coming from main road Jalebi Chowk and was going went towards A Block and was having one white katta. On seeing them the accused tried to escape. On suspicion, they stopped him. Upon checking he found two gatta patties of illicit liquor in the said kattaa. He asked 4-5 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. Thereafter, he opened the said gatta patties and found 96 quarter bottles of illicit liquor. He took out two samples from the said recovered illicit liquor and kept the remaining into the said patties and prepared the pullanda of the same and sealed the same with the seal of TP. He FIR No. 308/15 State Vs. Arun @ Rahul Digitally Page No. 4 of 15 signed by SANYA SANYA DALAL DALAL Date:
2025.05.20 17:10:29 +0530 Dated: 20.05.2025 prepared the rukka Ex. PW3/A and handed over the same to Ct. Rampal for registration of FIR. After registration of FIR, he handed over the copy of FIR and original rukka to IO. He prepared the site plan which is already Ex. PW3/B, seizure memo Ex. PW1/A. Thereafter, the case property was deposited in malkhana. He served notice under Section 41A Cr.P.C. upon the accused which is Ex. PW3/C. The witness correctly identified the accused and the case property.
The witness was not cross examined despite opportunity being given.
v. PW-5 HC Jitender has deposed that on 31.03.2015, he was posted as Constable at PS Sultanpuri. He deposed that on receipt of 42A, he alongwith Ct. Rampal and IO/ HC Rajbir Singh were on patrolling duty in the area of AB Extension, Sultanpuri, Delhi. He deposed that they saw one person who after seeing them tried to flee away from the spot. On suspicion, they stopped him and upon checking they found two gatta patties of illicit liquor in the said katta. IO asked 4-5 public persons to join the investigation but none agreed and left the spot without disclosing their names and addresses. Thereafter, IO prepared the tehrir and handed over the same to him for registration of FIR. After registration of FIR, he handed over the copy of FIR and original rukka to IO. Thereafter, IO took out one sample each from the said recovered katta of illicit liquor and kept the remaining into the said patties and prepared the Digitally FIR No. 308/15 State Vs. Arun @ Rahul signed byPage No. 5 of 15 SANYA SANYA DALAL DALAL Date:
2025.05.20 17:10:33 +0530 Dated: 20.05.2025 pullanda of the same and sealed the same with the seal of TP. IO prepared the seizure memo of recovered illicit liquor vide seizure memo already Ex. PW1/A. Further, IO released the accused after giving notice under Section 41A Cr.P.C. to the accused. IO recorded his statement. The witness correctly identified the accused as well as the case property.
During cross-examination, the witness deposed that he alongwith IO had reached at the spot at about 07:30 PM to 08:00 PM. He deposed that he alongwith two police officials were present at the spot. No notice was served upon the public persons to join the investigation. He deposed that public persons were present at the spot. IO prepared the tehrir at the spot and filled Form M-29 and also served notice upon the accused.
4. The accused had admitted the genuineness of present FIR as Ex. P1 and Chemical Examiner Report as Ex. P2. Consequently, the witnesses were dropped accordingly.
5. Prosecution evidence was closed. Statement of accused was recorded u/s 351 BNSS on 28.02.2025 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 opted not to lead defence evidence.
6. Final Arguments were heard. Case file perused.
Digitally FIR No. 308/15 State Vs. Arun @ Rahul signed by SANYA Page No. 6 of 15 SANYA DALAL DALAL Date:
2025.05.20 17:10:39 +0530 Dated: 20.05.2025
7. 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.
8. 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.
Applicable Law and its application to present facts
9. Section 33 of The Delhi Excise Act, 2009 provides penalty for unlawful import, export, transport, manufacture, possession, sale etc. of any intoxicant or liquor. Section 38 of the Delhi Excise Act, 2009 provides penalty for possession of unlawfully imported liquor without paying the prescribed duty for the same.
"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 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 Digitally signed by FIR No. 308/15 State Vs. Arun @ Rahul SANYA SANYA DALAL Page No. 7 of 15 DALAL Date:
2025.05.20 17:10:44 +0530 Dated: 20.05.2025 shall not be less than fifty thousand rupees but which may extend to one lakh rupees."
10.Before a person can be held liable for commission of any offence, the prosecution has to establish his guilt beyond reasonable doubt.
11.I shall now delve into the appraisal of material available on record.
12. Possibility of tampering: The testimonies of PW1 and PW4 reflect that the case property and the remaining case property was sealed with the seal of TP, however, there is no handing over memo of the seal to suggest that the seal used for the seizure of the case property remained in possession of any independent person. PW1 and PW4 correctly identified the case property and same was Ex. P-1 and Ex. P-2 and at the time of production of case property, the same was bearing the seal of MS. There is no document on record which could suggest that seal of MS belongs to whom and the same was appended at what point of time.
13.Proof regarding the complainant being on patrolling duty:
It would be pertinent to note that there is no proof/material on record to prove that PW1, PW-4 and PW-5 were on patrolling duty on the relevant point of time i.e. on 31.03.2015. Further, there is no departure entry to the said effect.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of the Punjab Police FIR No. 308/15 State Vs. Arun @ Rahul Digitally Page No. 8 of 15 signed by SANYA SANYA DALAL DALAL Date:
2025.05.20 17:10:49 +0530 Dated: 20.05.2025 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.
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 by Hon'ble High Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29, 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."
In the instant case this provision has not been complied by the concerned Police Witnesses/PW1, PW4 Digitally FIR No. 308/15 State Vs. Arun @ Rahul signed by SANYA Page No. 9 of 15 SANYA DALAL DALAL Date:
2025.05.20 17:10:56 +0530 Dated: 20.05.2025 and PW-5. The relevant entries regarding the arrival and departure of the police officials have not been proved.
14.Non Joining of any independent public witnesses: As per the version of PW1, PW4 and PW-5 the public persons were asked to join the investigation but none of them agreed and went away without disclosing their names and addresses. Further the IO has not produced any notice u/s 160 of the Cr.PC which ought to have been served upon those available independent witnesses who allegedly refused to join the investigation.
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 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 Digitally FIR No. 308/15 State Vs. Arun @ Rahul signed by SANYA Page No. 10 of 15 SANYA DALAL DALAL Date:
2025.05.20 17:11:00 +0530 Dated: 20.05.2025 citizen, which is an offence under the IPC."
While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
FIR No. 308/15 State Vs. Arun @ Rahul Digitally Page No. 11 of 15 signed by SANYA SANYA DALAL DALAL Date:
2025.05.20 17:11:07 +0530 Dated: 20.05.2025 The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinize their testimonies more closely and should preferably be corroborated.
15.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, FIR No. 308/15 State Vs. Arun @ Rahul Digitally signed by Page No. 12 of 15 SANYA SANYA DALAL DALAL Date:
2025.05.20 17:11:17 +0530 Dated: 20.05.2025 there is no seal handing over memo on record. Further, there is nothing on record to prove whether the 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."
16.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 FIR No. 308/15 State Vs. Arun @ Rahul Digitally Page No. 13 of 15 signed by SANYA SANYA DALAL DALAL Date:
2025.05.20 17:11:28 +0530 Dated: 20.05.2025 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 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.
17.Doubtful Form M-29 As per PW1 and PW-5, the IO firstly had prepared Form M-29 and the FIR was registered later on, however, the Form M-29 is bearing the FIR No., thus suggesting the ante-time/ dated FIR, eventually creating suspicion upon the case of the prosecution.
18.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.
19.In view of the above, it can be safely concluded that prosecution has miserably failed to establish beyond reasonable doubt the case against the accused. Hence, the benefit of doubt be given to the accused. Since the FIR No. 308/15 State Vs. Arun @ Rahul SANYA Page No. 14 of 15 DALAL Digitally signed by SANYA DALAL Date: 2025.05.20 17:11:34 +0530 Dated: 20.05.2025 recovery of illicit liquor from the possession of accused could not be established, accused namely Arun @ Rahul S/o Sh. Surender Kumar is acquitted for the offences u/s 33/38 of Delhi Excise Act.
20.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.
21.File be consigned to Record Room after due compliance.
Digitally signed by SANYA SANYA DALAL DALAL Date:
Announced and dictated in 2025.05.20 17:11:41 +0530 the open court on this day i.e. 20th May, 2025 (Be uploaded forthwith) (SANYA DALAL) JMFC-01/North-West District Rohini Court, Delhi 20.05.2025 FIR No. 308/15 State Vs. Arun @ Rahul Page No. 15 of 15