Delhi District Court
State vs Atul Gupta on 22 September, 2025
State Vs. Rajesh Kumar & Anr.
IN THE COURT OF MS. PAYAL SINGAL
JUDICIAL MAGISTRATE FIRST CLASS-09, CENTRAL,
TIS HAZARI COURTS, DELHI
State Vs. Rajesh Kumar & Anr.
FIR No. 273/2019
PS. Burari
U/s 33 Delhi Excise Act
Cr. Case No. 9443/2021
JUDGMENT
1) CNR Number of the case : DLCT02-017210-2021
2)The date of commission of offence : 25.07.2019
3) The name of the complainant : ASI Chander Pal Singh
4) The name & parentage of accused : (1)Rajesh Kumar, S/o Sh. Ved Parkash
2. Atul Gupta, S/o Sh. Anant Ram Gupta
5) Offence complained of : u/s 33/38 Delhi Excise Act
6) The plea of accused : Not guilty
7) Final order : Acquittal Date of Institution : 07.09.2021 Judgment reserved on : 12.09.2025 Judgment announced on : 22.09.2025 BRIEF FACTS:
1) Vide this judgment, I shall decide the fate of the abovementioned FIR.
2) The brief case of the prosecution is that on 25.07.2019 at about 11.30 pm at infront of transport authority, 100 foota road, Burari, within the jurisdiction of PS Burari the accused Rajesh Kumar allowed his car bearing registration DL-9CAD-0516 for carrying illicit liquor as mentioned in FIR No. 273/2019, PS Burari Page No. 1 of 14 State Vs. Rajesh Kumar & Anr.
seizure memo mark X without any license, permit or pass and in contravention of the notification issued by Delhi Govt. and thereby the accused Rajesh Kumar committed an offence punishable under section 33/52 Excise Act.
3) The further brief case of the prosecution is that on 25.07.2019 at about 11.30 pm at infront of transport authority, 100 foota road, Burari, within the jurisdiction of PS Burari the accused Atul Gupta were found driving the vehicle bearing registration no. DL-9CAD-0516 make Swift white in colour which found transported illicit liquor as mentioned in the seizure memo Mark X without having any requisite licence or permit and the accused Atul Gupta committed an offence punishable u/s 33/38 Delhi Excise Act, 2009.
4) After completion of the investigation, the chargesheet was filed in the court, upon which cognizance was taken u/s 33 Delhi Excise Act and after complying with the provisions of Section 207 Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), arguments on the point of charge were heard and the formal charge was framed u/s 33 Delhi Excise Act, 2009 against the accused Rajesh Kumar and Atul Gupta on 16.10.2023 to which they pleaded not guilty and claimed trial. Thereafter, the case was proceeded further for prosecution evidence.
PROSECUTION EVIDENCE:
5) Before proceeding with the prosecution evidence, it is relevant to mention here that during the course of trial, the FIR No. 273/2019, PS Burari Page No. 2 of 14 State Vs. Rajesh Kumar & Anr.
accused persons had admitted the Copy of FIR (Ex.AD1), Endorsement on Rukka (Ex.AD2), Certificate u/s 65-B Indian Evidence Act (Ex.AD3), DD No. 69 B dated 25.07.2019 (Ex. AD-4), Excise Lab Report (Ex. AD5) and Road Certificate no. 469/21/19 (Ex.AD6), without admitting the contents of the said documents. Thus, the said witness were not summoned.
6) Accordingly, to bring home the guilt of the accused persons, the prosecution examined the remaining 03 witnesses in support of its case i.e. PW-1 ASI Vipin, PW-2 HC Vinay, PW-3 HC Anil Kumar and PW-4 ASI Chander Pal. Now, the testimonies of all these witnesses shall be discussed one by one.
7) PW-1 ASI Vipin deposed that on 26.07.2019 he was posted as MHC(M) CP. On that day the case property and sample of the case property of the present case i.e. 16 plastic katta bearing the seal of CPS was deposited in the malkhana in his presence and during investigation of the case, sample seal of the case property and RC was handed to Ct Nikhil for depositing Excise Office, L-Block, Vikas Bhawan, ITO vide RC of 469/21/19. After deposition of the sample seal to the Excise Office, Ct Nikhil came to the PS and handed over me copy of the RC.
8) PW-2 HC Vinay deposed that on 25.07.2019 he was posted as Ct at PS Burari. On that day he alongwith ASI Chander Pal, SI Sarabjeet, Ct Tejvir were available at Authority picket vide DD No. 69 B and checking vehicle which were coming from outer ring road on 100 foota road. At about FIR No. 273/2019, PS Burari Page No. 3 of 14 State Vs. Rajesh Kumar & Anr.
11.30 pm one white colour Swift car bearing no. DL- 9CAD-0516 was coming in a speedy manner and after seeing the same, ASI Chander Pal made signal to the driver of the said driver through torch to stop the same and after seeing the same, SI Sarabjeet put the baricates on the road to block the way. After stopping the said vehicle, the accused came out and tried to ran away from the spot. PW-2 alongwith the help of ASI Chander Pal apprehended the accused and asked the reason for his running away from the spot but he could not give any satisfactory answer. Thereafter, ASI Chander Pal made cursory search of the vehicle and it found containing carton boxes of illicit liquor. ASI Chander Pal requested the passerby to join the investigation but none agreed and left the spot without disclosed their names and addresses. Due to paucity of time, no notice could be served upon them. Without wasting any further time, ASI Chander Pal started the proceedings and took out carton boxes of the illicit liquor from the car. When the said carton boxes were counted, it was total in number of 32 carton boxes. Out of the said 32 boxes, 08 carton boxes were having the lable of "Impact Grain Whishky for sale in haryana only containing 48 glass quarter bottles each". ASI Chander Pal took one quarter bottle from each peti and the same were kept in a white plastic sack and sealed with the seal of CPS and the remaining quarter bottles were kept in their respective carton boxes and these boxes were kept in white plastic sack in the capacity of two carton boxes in one plastic FIR No. 273/2019, PS Burari Page No. 4 of 14 State Vs. Rajesh Kumar & Anr.
sack. These 04 plastic sacks were given the serial no. 1 to
4. The remaining 24 boxes were having the illicit liquor lable of "santara desi sharab for sale in haryana only containing 50 plastic quarter bottles each". ASI Chander Pal took out one quarter bottle from each peti and the same were kept in a white plastic sack and sealed with the seal of CPS and the remaining quarter bottles were kept in their respective carton boxes and these boxes were kept in white plastic sack in the capacity of two carton boxes in one plastic sack. These 12 plastic sacks were given the serial no. 5 to 16. Thereafter, ASI Chander Pal filled form M-29 at the spot. After using the seal, it was handed over to PW-2. The case property was seized vide seizure memo Ex. PW2/A. Thereafter, ASI Chander Pal also seized the said Swift car in which illicit liquor was transported vide seizure memo Ex. PW2/B. ASI Chander Pal prepared tehrir and handed over the same to PW-2 for the registration of FIR. Thereafter, he left the spot and went to PS Burari and handed over the tehrir to concerned DO for the registration of FIR. After the registration, the concerned DO handed over computerized copy of FIR and original tehrir to PW-2. Thereafter, the further investigation was marked to HC Anil. PW-2 alongwith him reached at the spot. ASI Chanderpal produced the accused alongwith case properties before HC Anil and narrated the whole incident. IO/HC Anil also seized RC of the Swift car vide seizure memo Ex. PW2/C. Thereafter, HC Anil prepared site plan at the instance of ASI Chander Pal Ex.
FIR No. 273/2019, PS Burari Page No. 5 of 14PW2/D. Thereafter, IO/HC Anil made inquiry with the accused Atul Gupta and prepared documents pertaining to his arrest Ex. PWP2/F and Ex.PW2/G. PW-3 alongwith IO and other staff members brought the case property and the accused to the PS Burari. The case properties were deposited into the malkhana of PS Burari. On the same day itself, the accused was produced before the concerned court and sent him into JC. The said witness correctly identified the accused and the case property.
9) PW-3 HC Anil Kumar deposed that on 26.07.2019 he was posted as HC at PS Burari. On that day after registration of FIR, the investigation was marked to PW-3. He went to the spot where ASI Chander Pal alongwith staff, accused Atul Gupta and the case property met gum. PW-3 prepared the site plan Ex. PW2/B. PW-3 arrested the accused vide memo Ex. PW2/A. Personal search of accused was conducted vide memo Ex. PW2/F. He recorded the disclosure statement of the accused Ex. PW2/G. He also seized the RC of car No. DL-9CAD-0516 from which the illicit liquor was seized vide memo Ex. PW2/C. PW-3 deposited the case property and car in malkhana. He recorded the statement of the witnesses, accused was sent to JC. PW-3 further obtained the ownership of car from RTO and found its registered in the name of Rajesh Kumar to whom he served a notice U/s 133 MV Act vide memo Ex. PW3/A. On 29.10.2019, accused came to PS where he interrogated him and he disclosed that accused Atul was his relative and the said car was given to him for driving.
FIR No. 273/2019, PS Burari Page No. 6 of 14Notice u/s 41 A Cr.P.C was served to accused Rajesh vide memo Ex. PW3/B. PW-3 deposited the sample of liquor for chemical analysis to Excise Lab. After obtaining the result, he prepared the challan and filed the same before the court. The said witness correctly identified the case property.
10) PW-4 ASI Chander Pal deposed that on 25.07.2019 he was posted as ASI at PS Burari. On that day he alongwith Ct. Vinay, SI Sarabjeet, Ct Tejvir were available at Authority picket vide DD No. 69 B and checking vehicle which were coming from outer ring road on 100 foota road. At about 11.30 pm one white colour Swift car bearing no. DL-9CAD-0516 was coming in a speedy manner and after seeing the same, PW-4 made signal to the driver of the said driver through torch to stop the same and after seeing the same. SI Sarabjeet put the baricates on the road to block the way. After stopping the said vehicle, the accused came out and tried to ran away from the spot. He alongwith the help of Ct. Vinay apprehended the accused and asked the reason for his running away from the spot but he could not give any satisfactory answer. Thereafter, PW-4 made cursory search of the vehicle and it found containing carton boxes of illicit liquor. PW-4 further requested the passerby to join the investigation but none agreed and left the spot without disclosed their names and addresses. Due to paucity of time, no notice could be served upon them. Without wasting any further time, he started the proceedings and took out carton boxes of the FIR No. 273/2019, PS Burari Page No. 7 of 14 State Vs. Rajesh Kumar & Anr.
illicit liquor from the car. When the said carton boxes were counted, it was total in number of 32 carton boxes. Out of the said 32 boxes, 08 carton boxes were having the lable of "Impact Grain Whishky for sale in haryana only containing 48 glass quarter bottles each". PW-4 took out one quarter bottle from each peti and the same were kept in a white plastic sack and sealed with the seal of CPS and the remaining quarter bottles were kept in their respective carton boxes and these boxes were kept in white plastic sack in the capacity of two carton boxes in one plastic sack. These 04 plastic sacks were given the serial no. I to
4. The remaining 24 boxes were having the illicit liquor lable of "santara desi sharab for sale in haryana only containing 50 plastic quarter bottles each". He took out one quarter bottle from each peti and the same were kept in a white plastic sack and sealed with the seal of CPS and the remaining quarter bottles were kept in their respective carton boxes and these boxes were kept in white plastic sack in the capacity of two carton boxes in one plastic sack. These 12 pastic sacks were given the serial no. 5 to
16. Thereafter, he filled form M-29 at the spot Ex.PW4/A. After using the seal, it was handed over to Ct. Vinay. The case property was seized vide seizure memo Ex. PW2/A. In a meantime, three officials from excise department also reached at the spot and apprised PW-4 that they were also having the same information regarding the illicit liquor. Thereafter, PW-4 also seized the said Swift car in which illicit liquor was transported vide seizure memo Ex.
FIR No. 273/2019, PS Burari Page No. 8 of 14PW2/B. PW-4 prepared tehrir Ex.PW4/B and handed over the same to Ct. Vinay for the registration of FIR. Thereafter, Ct. Vinay left the spot and went to PS Burari. After some time Ct. Vinay alongwith HC Anil reached at the spot. PW-4 produced the accused alongwith case properties before HC Anil and narrated the whole incident. Thereafter, HC Anil prepared site plan Ex.PW2/D. Thereafter, IO/HC Anil relieved him from the investigation after recording his statement u/s 161 Cr.PC. The said witness correctly identified the accused and the case property.
11) All the witness were duly cross examined by the Ld. Defence counsel wherein some material facts have come on record which shall be duly dealt with in the reasoning part of the judgment.
STATEMENT OF THE ACCUSED:
12) After recording the testimony of all the witnesses, the PE was closed and thereafter, the statement of the accused u/s 313 Cr.P.C. was recorded on 12.09.2025. In the said statement, the accused denied all the allegations levelled against them and stated that they had been falsely implicated in the present case. The accused persons further stated that they do not want to lead any DE and accordingly, the matter came up for final arguments.
FINAL ARGUMENTS:
13) Arguments on behalf of the accused persons were FIR No. 273/2019, PS Burari Page No. 9 of 14 State Vs. Rajesh Kumar & Anr.
advanced by ld. counsel Sh. Sudhir Kumar Jha and by Sh. Rohit Lohat, Ld. APP on behalf of the State.
14) It was argued by the Ld. counsel for the accused persons that the prosecution had failed to prove the guilt of the accused beyond all reasonable doubt. It was argued that the non-joinder of public witnesses despite availability and non-handing over of the seal to any independent witness cast a shadow of doubt upon the prosecution story. It was also argued that no photography/videography of the case property was done on the spot, in the absence of which, it cannot be said that the illicit liquor was recovered from the possession of the accused. Accordingly, it was argued that a reasonable doubt had been raised in the case of the prosecution, the benefit of which was necessarily to go to the accused.
15) Per contra, it was argued by the Ld. APP for the state that there were ocular and documentary evidence on record to bring home the guilt of the accused. It was argued that all the prosecution witnesses had corroborated the testimony of each other and no material contradictions were brought on record by the accused persons. Accordingly, it was argued that the state had proved its case beyond reasonable doubt and that the accused be convicted of the offence u/s 33 Delhi Excise Act.
16) I have heard the arguments from both the sides and have carefully perused the record.
REASONS FOR THE JUDGMENT:
FIR No. 273/2019, PS Burari Page No. 10 of 14State Vs. Rajesh Kumar & Anr.
17) It is settled proposition of criminal jurisprudence that 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 case appears to be improbable or lacks credibility, the benefit of doubt, necessarily has to go to the accused.
18) In the present case, the accused has been charged for committing an offence punishable under Section 33 Delhi Excise Act and all prosecution witnesses are official witnesses. In order to prove the guilt of the accused, the prosecution had to prove that the accused was found in possession of illicit liquor in contravention of the applicable law which in the opinion of the court, the prosecution has miserably failed to do.
19) The prosecution has examined only the police witnesses to prove that illicit liquor was recovered from the possession of the accused, however, admittedly, the alleged spot of recovery is a public place, as has been deposed by all the witnesses and as is also evident from the site map, but still, the witnesses have not deposed regarding any concrete effort to join public witnesses.
None of the PWs have stated about any effort that was made to join the public persons in the investigation or reasons why the same was not done. Ergo, it can be said that public witnesses were admittedly not joined in investigation. Taking a pause here, I find it relevant to note the judgment of Hem Raj v. State of Haryana AIR 2005 SC FIR No. 273/2019, PS Burari Page No. 11 of 14 State Vs. Rajesh Kumar & Anr.
2110, wherein it has been observed that :
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witness's one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance.".
20) Furthermore, all witnesses have admitted that after the case property was sealed, the seal was handed over to Ct.Vinay. However, no seal handing over memo was prepared. Thus, in present case the seal was neither handed over to an independent witness nor deposited in malkhana. No explanation has come on record as to seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out. Reliance is placed on Ramji Singh v. State of Haryana 2007 (3) R.C.R. (Criminal) 452, the Hon'ble Punjab and Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting FIR No. 273/2019, PS Burari Page No. 12 of 14 State Vs. Rajesh Kumar & Anr.
agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
21) Moreover, as per the version of the prosecution, accused was in possession of illicit liquor without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to find out about the source from where the same was arranged by the accused persons. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused persons arranged the same but the chargesheet is completely silent upon the said fact.
22) Then, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry and 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. In the case at hand, no entry/entries have been proved on the record by the prosecution. In absence of such proof, the court finds it hard to believe the prosecution version and the testimony of the police officials. Reference can be made to on Rattan Lal Vs. State 1987 (2) Crimes 29.
23) Lastly, it also assumes relevance that no FIR No. 273/2019, PS Burari Page No. 13 of 14 State Vs. Rajesh Kumar & Anr.
photography or videography of the case property was done at the spot to show that the illicit liquor was recovered from the possession of the accused.
24) Therefore, in view of the discussion made herein above and the facts and circumstances of the present case, the court is of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Atul Gupta and Rajesh Kumar stands acquitted of the offence under section 33 of Delhi Excise Act, 2009 that he has been charged with.
(Announced in open Court on 22nd September 2025 ) Digitally signed by PAYAL PAYAL SINGAL (The judgment contains 14 pages SINGAL Date:
2025.09.22 17:34:12 and all the pages bear my signatures) +0530 (Payal Singal) JMFC-09/Central District Delhi/22.09.2025 FIR No. 273/2019, PS Burari Page No. 14 of 14