Delhi District Court
State vs Ram Niwas Rathor on 20 December, 2025
IN THE COURT OF MS. DEEKSHA SETHI, JMFC-08, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-029211202413 ID. No. : 21529/24 FIR No. : 0629/23 U/s : 33 Delhi Excise Act P.S. : Uttam Nagar State v/s Ram Niwas Rathor a) Name & address of the : Ct. Sudheer complainant b) Name & address of : Ram Niwas Rathor accused S/o Sh. Tota Ram R/o Rajender Nagar Colony, Block-A, Lalhapur, P.S. Gola Goranatha Lakhimpur, Kaheri UP, Gorakhnath, Gorakhpur, Uttar Pradesh. c) Date of Commission of : 31.10.2023 offence d) Offence complained of : 33 Delhi Excise Act e) Plea of the accused : Pleaded not guilty. f) Final Order : Acquitted. g) Date of Institution : 04.05.2024 h) Judgment Pronounced on : 20.12.2025. JUDGMENT
Brief facts
1. The prosecution version in brief is that on 31.10.2023 at about 12:30 PM, accused Ram Niwas Rathor was found in State v/s Ram Niwas Rathor Page 1 Cr. Case No. 21529/2024 possession of 75 quarter bottles of illicit liquor, of make Race 7, Metro Liquor for sale in Haryana Only, 180 ml each, in contravention of the provisions of Delhi Excise Act in front of H.No. WZ-42, Om Vihar, Phase-III, Uttam Nagar, New Delhi. Thereafter, the complainant Ct. Sudhir informed about the said incident in the police station and police official from PS Uttam Nagar reached at the spot. Thereafter, an FIR bearing no. 629/2023 u/s 33 Delhi Excise Act was registered at PS Uttam Nagar in this regard. Investigation of the case was thereafter handed over to Investigating Officer HC Prakash Chandra.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act was filed against the present accused, i.e., Ram Niwas Rathor. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 33 Delhi Excise Act was framed against him, to which he had pleaded not guilty and claimed trial.
State v/s Ram Niwas Rathor Page 2 Cr. Case No. 21529/2024
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 Ct. Sudheer deposed that on 31.10.2023, he was posted as Constable at PS Uttam Nagar. On that day, he was on emergency duty and was going to the police station after attending a PCR call vide GD No. 78A and at around 12:30 p.m., he reached near WZ-42, Om Vihar, Phase-III, Uttam Nagar, Delhi, and saw that one person in the gali was carrying a white plastic bag on his right shoulder and on seeing PW-1, he turned back and started walking fast.
On suspicion, PW-1 ran behind the said person and stopped him and when no satisfactory answer was given by him for running away, PW-1 made him put the plastic bag on the ground and upon opening the same, PW-1 found illicit liquor in the bag. Thereafter, PW-1 informed at the PS Uttam Nagar and after some time, IO HC Prakash Chand reached at the spot. Thereafter, IO checked the plastic bag and found 75 quarter bottles of illicit liquor of make Race 7 metro liquor for sale in Haryana only. Thereafter, IO recorded the statement of this witness which is Ex.PW-1/A and gave it to this witness for registration of FIR. After getting the FIR registered, this witness came back to the spot and handed over the copy of FIR and the rukka to the IO. Thereafter, IO took out one quarter bottle as sample from the bag and sealed the sample and the plastic bag with the seal of 'PC'. Thereafter, IO seized the vehicle vide seizure memo Ex.PW-1/B and also prepared Form No. 29. Thereafter, IO prepared the site plan at the State v/s Ram Niwas Rathor Page 3 Cr. Case No. 21529/2024 instance of this witness which is on record as Ex.PW-1/C. Thereafter, PW-1 recorded the disclosure statement of the accused Ex.PW-1/D. Thereafter, IO arrested the accused and personally searched him vide memos Ex.PW-1/E and Ex.PW-1/F, respectively. Thereafter, PW-1 along with IO and accused and the case property came back to the police station where IO deposited the case property in the maalkhana and also recorded the statement of this witness under Section 161 Cr.PC. This witness was cross examined by Ld. counsel for the accused.
(ii) PW-2 HC Mahipal deposed that on 31.10.2023, he was posted at PS Uttam Nagar as MHCM(CP)/ HC. On the directions of IO, HC Prakash Chand handed over to him the sealed case property and sealed samples with the seal of PC. PW-2 deposited the same in the malkhana and entry to this respect was made in register no. 19 at serial no. 5477, copy of which is ExPW2/A. He further deposed that on 06.12.2023, he handed over the sealed samples vide RC no. 396/21/23 to Ct Prahlad for depositing the same at Excise Lab, ITO and entry with respect to the same was made in register no. 21, copy of which is placed on record as ExPW2/B. This witness was not cross examined by Ld. Defence Counsel despite been given opportunity for the same.
(iii) PW-3 Ct Prahlad deposed that on 06.12.2023, he was posted as Constable at PS Uttam Nagar. On that day, MHCM CP handed over to him the sealed exhibits vide State v/s Ram Niwas Rathor Page 4 Cr. Case No. 21529/2024 RC no. 396/21/23 for depositing the same in Excise Lab, ITO. PW-3 went to ITO and deposited the samples and obtained receiving upon the RC. After obtaining the receiving upon RC, PW-3 handed over the RC to MHCM CP. This witness was not cross examined by Ld. Defence Counsel despite been given opportunity for the same.
(iv) PW-4 HC Prakash deposed that on 31.10.2023, he was posted as Head Constable at P.S. Uttam Nagar. On that day, he was present in the police station and he was marked the investigation of DD no. 87. Thereafter, he went to the spot i.e WZ-42, Om Vihar, Phase-III, Uttam Nagar alone where he met the complainant namely Sh. Sudhir along-with accused namely Ram Niwas along-with the case property. Ct Sudhir handed over the case property and the apprehended accused to this witness. PW-4 checked the katta and upon counting, it was found containing 75 quarter bottles of Race 7 Metro Liquor desi sharab for sale in Haryana only. He took out one sample and sealed the same with the seal of PC. The remaining quarter bottles were put inside the same white plastic katta and sealed with the seal of PC. He prepared form M-29 which is Ex.PW-4/A. After use, the seal was handed over to Ct. Sudhir. This witness prepared the seizure memo Ex.PW-1/B. PW-4 recorded the statement of Ct. Sudhir Ex.PW-1/A on the basis of which he prepared the tehrir Ex.PW-4/B and handed over the same to Ct. Sudhir for getting the FIR registered. He went to the police station and got the FIR registered. He came back to the spot and State v/s Ram Niwas Rathor Page 5 Cr. Case No. 21529/2024 handed over the copy of FIR and original tehrir to this witness. PW-4 prepared the site plan Ex.PW-1/C and interrogated the accused and recorded his disclosure statement Ex.PW-1/D. PW-4 arrested the accused vide arrest memo ExPW1/E and prepared the personal search memo ExPW1/F. Thereafter, PW-4 took the case property to the police station along-with Ct Sudhir & the accused. The accused was lodged behind the bars after getting his medical examination conducted. PW-4 deposited the case property in the malkhana and also sent the sample to the excise lab for expert opinion through Ct. Prahlad. He also recorded the statement of witnesses U/s 161 Cr.P.C. This witness was cross examined by Ld. counsel for the accused.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR No. 629/2023, certificate u/s 65B of Indian Evidence Act, DD No. 87A dated 31.10.2023, GD No. 139A dated 31.10.2023 and result analysis of Excise Control Laboratory. The above- said documents were exhibited as Ex.A-1 (colly), Ex.A-2 Ex.A-3 and Ex.A-4 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was State v/s Ram Niwas Rathor Page 6 Cr. Case No. 21529/2024 innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of illicit liquor without any permit or licence. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10. It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the State v/s Ram Niwas Rathor Page 7 Cr. Case No. 21529/2024 prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11. The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of cross examination of PW-1 Ct. Sudhir (the complainant) and that of PW-4 HC Prakash (the IO) reveals that the IO had asked some public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
State v/s Ram Niwas Rathor Page 8 Cr. Case No. 21529/2024 "The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
14. Perusal of the record further reveals that there is a delay of about thirty five days in sending the samples to the Excise Control Laboratory for examination. The Hon'ble High Court of Delhi in a case titled Rishi Dev @ Onkar Singh v State (Crl. A. No. 757/2000) decided on 01.05.2008 has observed that to prevent the possibility of tampering with the samples, it is desirable that the samples are sent to the CFSL at the earliest. The relevant paragraph of the said judgment runs as under:
State v/s Ram Niwas Rathor Page 9 Cr. Case No. 21529/2024 "The sample that is kept in a police malkhana, under the seals of the police officers themselves, is still definitely under the control of those police officers. There is every possibility that the samples could be tampered and again re-sealed by the very same officers by again affixing their seals. It is to prevent this from happening that earlier the sample is sent for testing to the CFSL the better."
15. In the instant case, alleged recovery was made on 31.10.2023 yet the samples were sent to the Excise Control Laboratory for examination on 06.12.2023, i.e., after about thirty five days. No explanation has been given by the IO for the said delay. The possibility of tampering with the samples cannot be ruled out especially keeping in mind the fact that the seal after use was not handed over to an independent witness and remained in the possession of police only. Thus, it creates a doubt on the prosecution version.
16. Perusal of tehrir ExPW4/B prepared by IO HC Prakash Chand reveals that he had first prepared the seizure memo of case property Ex. PW-1/B and form M-29 Ex. PW-4/A and after that rukka was prepared and sent to the police station for registration of FIR through PW-1 Ct. Sudhir and thereafter, present FIR was registered. It is, therefore, clear that the seizure memo of the illicit liquor and Form M-29 were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the seizure memo of case property Ex. PW-1/B and form M-29 Ex. PW-4/A, however, surprisingly, the seizure memo of case property State v/s Ram Niwas Rathor Page 10 Cr. Case No. 21529/2024 Ex. PW-1/B and form M-29 Ex. PW-4/A bear the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-4) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on seizure memo and Form M-29, which came into existence before registration of the FIR. However, as discussed above, the seizure memo of case property Ex. PW-1/B and form M-29 Ex. PW-4/A bear the FIR number and case details. In this context, Hon'ble High Court of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, State v/s Ram Niwas Rathor Page 11 Cr. Case No. 21529/2024 about the genuineness of the weapon of offence alleged to have been recovered from the accused."
(Emphasis supplied)
17. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents 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 recovery of the contraband in the manner alleged by the prosecution."
(Emphasis supplied)
18. In the present case also, it remains unexplained as to how the FIR No. and its details figure on the top of the documents, i.e., the seizure memo of case property Ex.
State v/s Ram Niwas Rathor Page 12 Cr. Case No. 21529/2024 PW-1/B and form M-29 Ex. PW-4/A. This creates serious doubt on the prosecution version and alleged recovery of illicit liquor and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19. Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that a katta which contained illicit liquor was recovered from the possession of the accused. The accused Ram Niwas Rathor is, therefore, acquitted of the offence u/s 33 Delhi Excise Act.
20. This judgment contains 13 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21. Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
ANNOUNCED IN THE OPEN COURT TODAY, i.e., ON 20.12.2025 Digitally signed DEEKSHA by DEEKSHA SETHI SETHI Date: 2025.12.20 15:34:25 +0530 Deeksha Sethi Judicial Magistrate First Class-08 South-West District/New Delhi 20.12.2025 State v/s Ram Niwas Rathor Page 13 Cr. Case No. 21529/2024