Delhi District Court
State vs Raja on 16 May, 2026
IN THE COURT OF JUDICIAL MAGISTRATE-01
KKD COURTS, DELHI.
TITLE: : State vs. Raja
FIR NO. : 284/2011
P.S. : Mayur Vihar
CNR-NO. : DLET020011402013
Date of commission of offence : 11.12.2011
Name of Informant/complainant : Ct. Ikram
Name of accused : Raja
Offence/s complained of : s. 33 Delhi Excise Act, 2009
Cognizance under section/s : s. 33 Delhi Excise Act, 2009
Charges framed under section/s : s. 33 Delhi Excise Act, 2009
Plea of the Accused : Not Guilty
Date of hearing Final Arguments: : 16.05.2026
Date of pronouncement : 16.05.2026
Final Order : Acquittal
For the Prosecution : Ld. APP
For the Defence : Sh. D.K. Suryavanshi
Digitally
signed by
Present : Pritu Raj PRITU PRITU RAJ
Date:
J.MFC.- 01, RAJ 2026.05.16
17:29:35
+0530
KKD Courts, Delhi.
FIR No. 284/11 State v. Raja Page 1 / 14
JUDGEMENT
1. The accused Raja is facing trial for offences u/s 33 Delhi Excise Act,2009.
2. Stated succinctly, the facts germane for the case of the prosecution are that on 11.12.2011 at about 06:30 PM at Central Park Corner, 20 Block, Trilok Puri, Delhi, accused was found in possession of 3 petties containing 24 half bottle of 375 ML each of illicit liquor bearing label Gulab Masaledar Desi Sharab, made in India, Queen Distilleries & Bottles (P) Ltd., without any license or permit in contravention of notification of Delhi Administration.
3. On the written application of the informant, SHO P.S. Mayur Vihar, registered, in relation to the above incident, a FIR no. 284/11 on 11.12.2011 and, after in- vestigation, submitted the charge sheet on 26.03.2013 the aforementioned ac- cused person u/s 33 Delhi Excise Act. Cognizance was taken on 07.05.2013 and provisions of Section 207 Code of Criminal Procedure, 1973 {hereinafter 'Cr.P.C.'} were duly complied with on 09.09.2013.
4. Charges u/s 33 Delhi Excise Act were framed and read over to the accused, in Hindi, on 31.07.2015 to which he denied the incident and claimed to be tried.
5. The prosecution, in order to prove the case beyond all reasonable doubt, exam- ined three witnesses in support of its case during the course of trial.
6. Evidence on behalf of the prosecution was closed vide order dated 06.05.2026 and the accused was examined u/s 313 Cr.P.C. on the same date wherein he Digitally signed by FIR No. 284/11 State v. Raja PRITU PRITU RAJ Date:
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chose not to lead DE. Final arguments were heard and the matter was fixed for Judgment.
APPRECIATION OF EVIDENCE
7. The primary issue to be decided in the present case is whether the prosecution has been able to prove its case against the accused beyond all reasonable doubt.
8. On a perusal of the oral and documentary evidence/arguments led by the pros- ecution, the following observation emerge:
9. The learned Assistant Public Prosecutor for the state, relying upon Section 52 of the Delhi Excise Act, had argued that where the accused is charged of com- mission of the offence punishable Section 33 of the Delhi Excise Act, a pre- sumption in favour of the prosecution is raised under Section 52 of the Delhi Excise Act to the effect that the accused had committed the said offence and it is for the accused to prove the contrary. The said argument does not find favour with this Court. Section 52 of the Delhi Excise Act reads as under:
"Presumption as to commission of offence in certain cases. - (1) In prose- cution 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 commis-
sion 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 sat- isfies the court that he had exercised due care in the prevention of the com- mission of such an offence".
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10. 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-requi-
site for the presumption under the aforesaid provision being raised against the accused, it is imperative for the prosecution to successfully establish the recov-
ery of the said alleged articles from the possession of the accused. It is only af-
ter the prosecution has proved the possession of the alleged articles by the ac-
cused, that the accused can be called upon to account for the same. However, for the reasons mentioned hereinafter the prosecution has failed to establish beyond reasonable doubt that the accused was found in possession of the al-
leged 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.
11. In the present case, no public witness has been examined on behalf of the pros- ecution in order to assuage its claim. The recovery is alleged to have been done near a busy spot i.e. Central park, Block 20, as envisaged also from the site map, and as per the examination of PW-2, public persons were be readily available at the time when the accused was apprehended, however, they were not included as witnesses in the investigation.
12. Moreover, while PW-2 has stated in his examination-in-chief that he had asked four or five persons to join the investigation but no one joined the investiga- tion. From a perusal of the record, no serious effort for joining public wit- nesses appears to have been made. There is nothing on record to show that IO-
FIR No. 284/11 State v. Raja Digitally
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PRITU PRITU
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had served any notice u/s 160 Cr.P.C. on the public persons who were present at the time when the seizure was effected. The failure to make conscious and serious efforts to give adequate notice to public witnesses is amplified in view of the statuary duty which is imposed u/s 100(4) Cr.P.C. to call upon two re- spectable persons of the locality to join the search. However, no such notice was served, thereby raising a doubt on the case of the prosecution.
13. Reliance in this regard is placed on paragraph 6 of the judgment in Pawan Ku- mar v. Delhi Administration 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their re- spective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though num- ber of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that there is an apa- thy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direc- tion appears to have been made and this, by itself, is a circumstance throw- ing doubt on the arrest or the recovery of the knife from the person of the accused."
14. The same has been reiterated in "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), wherein it had been observed by Hon'ble High Court of Delhi as un- der:
Digitally FIR No. 284/11 State v. Raja signed by PRITU PRITU RAJ Page 5 / 14 Date:
RAJ 2026.05.16 17:30:02 +0530 "18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join indepen-
dent witnesses. In the present case, it is evidence that no such sincere ef- forts have been made, particularly when we find that shops were open and one or two shopkeepers 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 citizen, which is an of- fence under the IPC".
15. Similarly in In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as un- der:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the in- vestigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband ar- ticles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explana- tion does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and ad- dresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the in- vestigation and on refusal by a person from the public the Investigating Of- ficer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the rele- vant provisions of law. The failure to do so by the police officer is sugges- tive of the fact that the explanation for nonjoining the witnesses from the Digitally FIR No. 284/11 State v. Raja signed by PRITU PRITU RAJ Page 6 / 14 Date:
RAJ 2026.05.16 17:30:08 +0530 public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
16. Similarly, in "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Pun- jab & Haryana High Court had observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the ac- cused". "6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh, PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joint. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt hav- ing been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of pub- lic witness. This reflects adversely on the prosecution version".
17. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
18. Moreover, the arrival and departure entry in the present case has not been proved in the present case which is a statutory duty on the police officials. It Digitally signed by FIR No. 284/11 State v. Raja PRITU Page 7 / 14 PRITU RAJ Date:
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would be prudent to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 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 offi-
cer 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."
19. In the present case, the non-proof of departure and arrival entry assumes more significance in view of the fact that no public person was portrayed as a wit- ness on behalf of the prosecution. At this juncture, it would be relevant to refer to a case law reported as "Rattan Lal Vs. State" 1987 (2) Crimes 29, wherein the Delhi High Court has observed that if the investigating agency deliberately ignores to comply with the provisions of the Act, the courts will have to ap- proach their action with reservations & thus the matter has to be viewed by the court with suspicion, if the necessary provisions of law are not strictly com- plied with and then it can at least be said that it was so done with an oblique motive. This failure of the prosecution to bring on record & prove the relevant DD entry as discussed above creates a reasonable doubt in the prosecution ver- sion and attributes oblique motive on to the actions of the members of the raid- ing party.
Digitally
signed by
FIR No. 284/11 State v. Raja PRITU PRITU
RAJ
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20. PW 2 has deposed in his examination-in-chief that the liquor was seized vide seizure memo Ex. PW-2/B by the IO and the same was done after the rukka was sent to PS for registration of FIR. Hence it becomes apparent that the seizure memo was prepared prior to the lodging of FIR. However, interest- ingly, the said seizure memo contains the FIR number. There appears to be material contradiction between the version of incidents stated by the witnesses of the prosecution and creates a reasonable doubt in the version of the story sought to be proved by the prosecution that the seizure memo was bearing the FIR no. prior to its lodging. The same is fatal for the case of the prosecution and reliance here is placed on the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as under:
"... Learned counsel for the State concedes that immediately after the ar- rest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was pre- pared 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. 36 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, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
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21. Similarly, in paragraph 4 of Mohd. Hashim v. State, 1999 VI AD (Delhi) 569, the Hon'ble High Court of Delhi observed:
"... 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."
22. In the instant case as well, no explanation has been furnished on record as to how the FIR number and case details have appeared on the seizure memo Ex. PW2/B. The same leads to inference that either the said documents were pre- pared later or that the FIR had been registered earlier in point of time. In both the aforesaid cases a dent is created and unexplained holes are left in the prose- cution story, the benefit of which must accrue to the accused.
23. Moreover, anywhere in the rukka, it is not mentioned that after the apprehen- sion of the accused persons, but before taking the formal/casual search of the accused persons, the police officials including the members of the raiding party, any of them had offered their own search to the accused persons, mean-
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ing thereby, that it has not been proved on record that the said police officials, who had effected the apprehension of the accused persons had offered them- selves for search by the accused persons or to any other member of public be- fore conducting the search of the accused persons so as to obviate the possibil- ity of the planting of the case property on to the accused persons.
24. At this juncture, it would be appropriate to refer to the judgment of Orissa High Court reported as "Rabindernath Prusty Vs. State of Orissa" wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and re- covery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others as- sisting him should give their personal search to the accused before search- ing the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J. 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 & 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had wit- nessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
25. In view of the above observations and discussion, this Court is of the consid- ered opinion that the prosecution had failed to discharge its burden of proving its case against the accused. It is well settled that the burden which lies on the prosecution is to prove the case beyond all reasonable doubt and not merely on the preponderance of probabilities. The case of the prosecution must stand on its own two legs. Reliance in this regard is placed on the judgment titled as Digitally signed by PRITU PRITU RAJ FIR No. 284/11 State v. RajaRAJ Date:
2026.05.16 Page 11 / 14 17:30:41 +0530 "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) wherein the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is al- ways upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pal- pably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
26. Furthermore, another material consideration which ought to be considered in the present case is that the seized property was sealed with the seal of the I.O. 'DS' and the same was handed over to Ct. Ikram. However, no handing over memo in this regard was prepared. The possibility of misuse of the seal in the present case cannot be ruled out since the same was not handed over to an in- dependent witness nor was the same deposited in the Malkhana.
27. The onus and duty to prove the case against the accused is upon the prosecu- tion and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reason- able doubt with regard to the guilt of the accused the accused is entitled to ben- efit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Gun- tur reported as VIII(2007) SLT 454(SC).
Digitally
signed by
PRITU RAJ
PRITU
FIR No. 284/11 State v. Raja RAJ
Date:
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28. The accused Raja S/o Sh. Kunji Ram is hereby acquitted of the offence pun- ishable under u/s 33 Delhi Excise Act,2009.
29. Case property be confiscated as per rules.
30. File be consigned to record room.
This judgment contains 14 pages and each page has been duly signed by the undersigned.
Digitally signed by PRITU PRITU RAJ Date:
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Announced in open Court (PRITU RAJ)
on 16th of May 2026 Judicial Magistrate-01
East, KKD Courts, Delhi.
FIR No. 284/11 State v. Raja Page 13 / 14
APPENDIX (as per directions of Hon'ble Supreme court of India in Manojbhai Parmar vs. State of Gujarat, 2025 INSC 1433) CHART FOR WITNESSES EXAMINED Prosecution witness no. Name of witness Description PW-01 ASI Uday Veer Duty Officer PW-02 ASI Ikram Complainant PW-03 HC Sunil Kumar Police witness CHART FOR EXHIBITED DOCUMENTS Exhibit. No. Description of the Exhibit Proved by /attested by Ex.PW1/A(OSR) Copy of FIR PW-1 Ex.PW1/B Endorsement on rukka PW-1 Ex.PW-2/A Statement of complainant PW-2 Ex.PW-2/B Seizure memo PW-2 Ex.PW-2/C Arrest Memo PW-2 Ex.PW-2/D Personal search memo PW-2 Ex.PW-2/E Disclosure Statement PW-2 memo CHART FOR MATERIAL OBJECTS Object No. Description of the Exhibit Proved by /attested by Ex.P1 Case property PW-2 Digitally signed by PRITU RAJ PRITU Date:
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