Delhi District Court
State vs Hari Om on 17 January, 2026
IN THE COURT OF SH. ANKIT KARAN SINGH
JUDICIAL MAGISTRATE FIRST CLASS-08, WEST
TIS HAZARI COURTS, DELHI
CNR No. DLWT02-014101-2019
CIS No. 6820/19
State Vs. Hari Om
FIR No. 463/18
PS. Mianwali Nagar
U/s. 33 Delhi Excise Act
JUDGMENT
1) The date of commission of offence : 31.10.2018
2) The name of the complainant : Ct. Virender
3) The name & parentage of accused : Hari Om S/o Surender Singh R/o R-514, Camp No.5, Jwalapuri, Delhi Also R/o VPO Poorvadal Path, Distt, Auraiya, U.P.
4) Offence complained of : u/s. 33 Delhi Excise Act complainant
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 17.01.2026 Date of Institution : 03.09.2019 Final Arguments heard on : 17.01.2026 Judgment reserved on : 17.01.2026 Judgment announced on : 17.01.2026 State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 1/11 JUDGMENT
1) The case of the prosecution against the accused is that on 31.10.2018 at about 8.20 pm near Ranhola Ground, Jwalapuri, Delhi, within the jurisdiction of PS Paschim Vihar West, accused was found in possession of illicit liquor as detailed in seizure memo Mark 'A' without any permit or license.
2) In support of its version, prosecution has examined two witnesses. Accused admitted FIR no.463/18 is Ex. A1, Certificate U/s 65B of Indian Evidence Act is Ex. A2, DD no.70 dated 31.10.2018 is Ex. A3, Chemical Examiner Report is Ex. A4 and Statement of Ct Pankaj is Ex. A5.
3) After conclusion of prosecution evidence, statement of accused was recorded separately wherein accused claimed to be innocent and denied the allegations against him. Accused opted not to lead any DE.
4) I have heard Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
5.1) PW-1 HC Virender deposed that on 31.10.2018, PW1 was posted at PS Ranhola as Ct. On that day PW1 was on patrolling in the area of beat no 4.
Thereafter at about 07:355 pm on that day, when PW1 reached in Camp No. Holi Chowk, Jawala Puri, Dehi PW1 saw the accused with one plastic sack on his shoulder. On seeing me in uniform, he turned back but PW1 some how manged to hold of him. Upon inquiry, he told his name as Hari Om. Upon checking the plastic sack, PW1 found some illicit quarter bottle. PW1 inform the duty officer and after some time IO/HC Jagbir reached the spot. IO asked some public persons to join the investigation but to no avail. IO checked the plastic sack and found a total of 22 quarter bottles of the make of Impact green whiskey for selling in Haryana only (180 ml). IO took out one bottle as State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 2/11 a sample and gave it serial no.1 and sealed it with the seal of SH. IO kept back the remaining bottle in the plastic sack and closed its mouth with the help of a white cloth and sealed it with the seal of SH and give it serial no.2. The seal was handed over to PW1. IO filed up form M-29. IO recorded his statement and prepared the tehrir is Ex. PW1/A and sent PW1 to the PS for getting the registration of FIR. PW1 went to the PS and got the FIR registered. After some time, PW1 came back to the spot and handed over the copy of FIR and tehrir to IO. IO prepared the site plan which is Ex. PW1/B. IO seized the case property vide memo Ex. PW1/C. IO prepared the personal search memo of accused which is now exhibited as Ex. PW-1/D and arrest memo is now exhibited as Ex. PW-1/E. IO recorded the disclosure statement of accused which is now exhibited as Ex. PW1/F. Thereafter, they brought the case property and accused to the PS and case property was deposited in the malkhana of the PS and PW1 took the accused to SGM hospital for his medical examination and after the medical, PW1 handed over the custody of accused to IO.
5.2) PW-2 ASI Jagbir deposed that on 31.10.2018, PW2 was posted at PS Ranhola as HC. On that day PW2 received one DD number and went at the spot and met Ct. Virender and accused there who handed over the illicit liquor for further course of investigation. PW2 asked some public persons to join the investigation but to no avail. PW2 checked the plastic sack and found a total of 22 quarter bottles of the make of Impact green whiskey for selling in Haryana only (180 ml). PW2 took out one bottle as a sample and gave it serial no.1 and sealed it with the seal of SH. PW2 kept back the remaining bottle in the plastic sack and closed its mouth with the help of a white cloth and sealed it with the seal of SH and give it serial no.2. The seal was handed over to PW2. PW2 filed up form M-29 which is now Ex. PW-2/A. PW2 State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 3/11 seized the case property vide memo already Ex. PW1/C. PW2 recorded statement already Ex. PW-1/A and endrose it and prepared the tehrir is Ex. PW-2/B and sent him to the PS for getting the registration of FIR. He went to the PS and got the FIR registered. After some time, he came back to the spot and handed over the copy of FIR and tehrir to PW2. PW2 prepared the site plan which is already Ex. PW1/B. PW2 prepared the personal search memo of accused which is already exhibited as Ex. PW-1/D and arrest memo is already exhibited as Ex. PW-1/E. PW2 recorded the disclosure statement of accused which is already exhibited as Ex. PW1/F. Thereafter, they brought the case property and accused to the PS and case property was deposited in the malkhana of the PS and he took the accused to SGM hospital for his medical examination and after the medical and handed over the custody of accused to PW2. PW2 sent the sample to the excise lab and after procuring the result PW2 prepared the chargesheet and filed the same before the court.
6) It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused person beyond reasonable doubts. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
7) Ld. counsel for the accused vehemently argued that the present case is a false one and is the example of high handedness of the police. He argued that the accused has been illegally framed in the present case and it is evident from the fact that the accused was allegedly apprehended from the public place and but there is no public witness to the proceedings. He argued that police officials conducted the entire proceedings and same is not trustworthy. Ld APP for the State argued that the public persons did not join the proceedings despite requests.
8) The manner in which the inquiry, seizure and search etc. was stated to State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 4/11 be conducted on the spot at the time of arrest of the accused and alleged recovery of liquor makes the prosecution version highly doubtful. It is evident from the testimony of PW-1 and PW-2 that accused was apprehended along with the alleged illicit liquor at public place but there is no public witness in the present case. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:-
In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. 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 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 offence under the IPC".
9) The names of the persons to whom the request was made to join the investigation has nowhere mentioned. No written notice has been placed on record which must be given to the public persons. Merely deposing that State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 5/11 public person refused to join the investigation is of no avail. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and are fatal to the prosecution version which establishes the defence version that there is total false implication of the accused in the present case and that the recovery was planted upon the accused.
10) It appears that no efforts was made to hand over the seal after use to independent person. I am conscious of precedent laid down by Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, that:
"10. The seals after use were kept by the police officials themselves. Therefore the possibility of tampering 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 tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
Hon'ble Punjab & Haryana High Court also held in Ramji Singh vs. State of Haryana, 2007 (3) RCR (Criminal) 452, that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
11) No seal handing over memo is on record. The police official having the possession of the seal was posted in the same police station in the malkhana of which the case property was lying. There was ample opportunity for tempering with case property. Hence, considering the legal position, the benefit of doubt should be given to the accused.
12) Besides all this, in the present case, the seizure memo of illicit liquor State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 6/11 Ex.PW1/C bears the number of FIR. As per the rukka and testimony of witnesses, the seizure memo was prepared prior to registration of FIR. If that be so then how seizure memo bears the FIR number. Now, I consider the observation made by Hon'ble Delhi High Court in Giri Raj v. State, 83 (2000) DLT 201. This gives rise to two inferences that either the FIR was recorded prior to the alleged recovery of the case property or number of the said FIR was inserted in the document 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 the recovery of the case property in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the accused.
13) Further the case property was sent for chemical examination on 02.11.2018 while the same was seized on 31.10.2018. The entire paper formalities were completed in 31.10.2018 only. When the entire codal formalities were completed on 31.10.2018 than the delay of 2 days in sending the exhibits for chemical examination is beyond comprehension. Again the police official having the possession of the seal was posted in the same police station where the case property was lying. There was ample opportunity for tampering with the case property and benefit of this laxity on the part of investigating officer should go to the accused.
14) Being guided by above-said case laws, it can be said that the search, seizure and recovery made by the above said police officials was in complete violation of the well established principles of law and the same can be said to be illegal which create grave doubts on the prosecution's version of recovery of liquor from the possession of the accused from the spot and substantiates the defence version that the alleged recovery was planted upon the accused at the police station and that entire proceedings were recorded at the police station and not on the spot.
State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 7/11
15) In the judgment titled as "S.L.Goswami v. State of M.P" reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always 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 palpably 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 ..........................."
16) The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII(2007) SLT 454(SC).
State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 8/11
17) In view of the aforesaid discussion, in my opinion accused has been able to raise a probable defence creating doubt about the existence or veracity of the prosecution version which renders the same untrustworthy. Accordingly, accused Hari Om stands acquitted of charged offences. Case property be confiscated to the State. Same be destroyed. Personal bail bonds U/s 437 A Cr.PC furnished. File be consigned to Record Room after due compliance. ANKIT Digitally signed by ANKIT KARAN SINGH KARAN Date: 2026.01.17 SINGH 17:25:52 +0530 Announced in the open court (ANKIT KARAN SINGH) on 17.01.2026 JMIC-08,West District, Tis Hazari Courts, Delhi.
State Vs. Hari Om FIR No. 463/18 U/s. 33 Delhi Excise Act 9/11