Delhi District Court
State vs Amar Singh on 20 August, 2025
IN THE COURT OF MS. RUBY NEERAJ KUMAR, CJM,
EAST, KARKARDOOMA COURT, DELHI
State v. Amar Singh
FIR No. 37/2020
u/s 33 Delhi Excise Act
PS: Kalyanpuri
JUDGMENT
Serial No. of the case 640/2021
Date of commission of offence 16.01.2020
Date of institution of case 05.02.2021
Name of the complainant Constable Balwant
Name of Accused, parentage & Amar Singh
Address S/o Sh. Mahender Singh
R/o H.No. 20/201, Kalyanpuri,
Delhi.
Offence complained Section 33 of Delhi Excise Act,
2009.
Plea of Accused Pleaded not guilty
Date of Arguments 07.08.2025
Final Order Acquitted
Date of Judgment 20.08.2025
BRIEF FACTS
1. Facts of the case in brief, as alleged by the prosecution, are that on 16.01.2020 at about 07.30 p.m. at 9 Block, near Dustbin located beside the Wall of Ambedkar Stadium, Trilokpuri Delhi within the jurisdiction of PS Kalyanpuri, PW-1 State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 1 of 14 Head Constable Balwant, while being on patrolling duty, on suspicion, apprehended the accused. The prosecution has alleged that the accused was found in possession of four cartons, which were carrying 50 quarter bottles each of illicit liquor bearing label "Asli Santra Masaledar Desi Sharab for sale in Haryana only "
without any license or permit. It is further the case of the prosecution that information regarding the recovery of illicit liquor was sent by PW-1 at PS Kalyan Puri, which was recorded vide DD No. 45 dated 16.01.2020 and on receiving the said information, PW-2/ Investigating Officer Head Constable Joginder Kumar reached at the spot. Thereafter, PW-2/IO took out one sample bottle from each carton, sealed the sample bottles as well as the remaining case property with the seal of 'JK' and seized the case property vide seizure memo, which is Ex.PW-1/A. PW-2/IO had also filled form M-29, which is Ex. PW-2/A. Thereafter, PW-2/IO recorded the statement of PW-1, which is Ex.PW-1/B, prepared rukka on the basis of the same, which is Ex. PW-1/C and handed over the same to PW-1 for registration of FIR. On the basis of rukka, present case FIR was registered against the accused by Duty Officer/Head Constable Ashok Kumar. It is further the case of the prosecution that after the registration of FIR, PW-2/IO arrested the accused vide arrest memo, which is Ex. PW-1/E, prepared the site plan, which is Ex. PW-1/D and conducted further investigation.
2. After completion of investigation, charge-sheet was filed in the court. Cognizance of the offence was taken and copy of charge-sheet was supplied to the accused in compliance of State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 2 of 14 Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C')
3. Arguments on charge were heard and vide order dated 24.04.2024, charge for offence under section 33 of Delhi Excise Act, 2009 was framed against the accused by the Ld. Predecessor. The accusation was read over and explained to the accused to which, he pleaded not guilty and claimed trial.
EVIDENCE RECORDED DURING TRIAL
4. The prosecution has examined two witnesses to establish and prove its case against the accused.
5. PW-1 Head Constable Balwant is the Complainant as well as the only recovery & arrest witness. He being on patrolling duty had apprehended the accused and recovered the alleged illicit liquor from his possession.
6. PW-2 Head Constable Joginder Kumar is the Investigating Officer of the instant case. He reached at the spot after receiving DD No. 45 dated 16.01.2020. He had seized the case property, arrested the accused, prepared the site plan and conducted further investigation.
7. It is pertinent to mention herein that vide separate statement recorded on 24.04.2024, in accordance with the provisions of Section 294 of Cr.P.C, accused admitted the recording of present case FIR No. 37/2020 dated 16.01.2020 PS State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 3 of 14 Kalyan Puri and Chemical Examination Report bearing No. SZD005058- SZD005061 dated 08.05.2020. In view of the admission made, Duty Officer/HC Ashok Kumar and Dr. Rajesh Joshi/ Chemical Examiner were dropped from the list of witnesses.
8. PE was closed on 30.07.2025. Statement of the accused, under section 313 r/w 281 Cr. P.C, was recorded on 04.08.2025. All the incriminating evidence were put to the accused. Accused stated that he is innocent and has been falsely implicated in this case. He has further stated that the case property alleged to have been recovered was planted on him & the police officials have registered a false and fabricated case against him as nothing was recovered from his possession. Accused submitted that he does not want to lead evidence in his defence. Accordingly, matter was fixed for final arguments.
9. I have heard the rival contentions of Ld. APP for the State as well as Ld. Counsel for the accused and carefully perused the entire material available on record.
ARGUMENTS ADDRESSED
10. Ld. APP for the State has argued that all the prosecution witnesses have supported the case of the prosecution and the prosecution has proved the factum of recovery of illicit liquor from the possession of the accused beyond reasonable doubt and therefore, the accused deserves to be convicted and sentenced as per law. Further, it is submitted by Ld. APP for the State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 4 of 14 State that by virtue of Section 52, Delhi Excise Act, 2009, a presumption arises against the accused that he has committed the offence under section 33 of the said Act, as the accused has failed to prove to the contrary and did not account satisfactorily for the possession of the liquor.
11. On the contrary, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present case and the alleged recovery was planted on him. He has further argued that in the absence of alleged recovery being supported by the evidence of independent public witnesses, the prosecution has failed to prove the recovery itself. He has further argued that the seal after use was not handed over to an independent person and therefore, possibility of case property having been tampered with cannot be ruled out. He has further argued that the prosecution has also failed to prove the presence of PW-1 & PW-2 at the place of recovery, which points towards the falsity of the prosecution's case and therefore, accused deserves to be acquitted in the present case.
BRIEF REASONS FOR THE DECISIONS
12. The case of the prosecution is that on the fateful day accused was found in possession of illicit liquor without any permit or license. In order to bring home the guilt of the accused, first of all the prosecution is required to prove the recovery of illicit liquor from the possession of accused beyond reasonable doubt. However, keeping in view the facts & circumstances of the case in totality and the arguments addressed on behalf of both the State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 5 of 14 parties, this court is of the considered opinion that there is not one but several anomalies in the case put forward by the prosecution, which renders the alleged recovery of illicit liquor from the possession of the accused highly skeptical and the same are discussed henceforth.
13. Firstly, section 100(4) of the Cr.P.C categorically enunciates that whenever any search is made, two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available shall be called upon to attend and witness the search. Further, as per section 100 (8) of the Cr.P.C, refusal to be a witness without any reasonable cause can render such public person liable for criminal prosecution. In the case at hand, it is amply clear from the evidence and has also been argued by the Ld. counsel for accused that there is no independent public witness of alleged recovery of the illicit liquor from the possession of the accused to corroborate and lend credibility to the prosecution version. As regards the same, it is pertinent to note that the PW-1 & PW-2 have unanimously deposed that the place of recovery was a public place & many passers- by were present. Further, PW-1 & PW-2 have deposed that the no notice was served upon the public persons, who had refused to join the investigation & left the spot. Evidently, despite the place of recovery being a public place, none of the public persons were joined in the investigation. Apparently, not even slightest of effort was made by the Investigating Officer to join the public witness in the investigation, which renders recovery of the alleged illicit liquor from the possession of the accused doubtful.
State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 6 of 14 It is well settled principle of law that mere non-joining of the public witness should not be a ground of acquittal but if the prosecution has not joined the public witnesses when they can be joined, it was incumbent upon the prosecution to at least put forward plausible explanation for not doing so. Merely stating that the public persons refused to join the investigation does not absolve the Investigating Officer of his duty. In such a situation, he is bound to take appropriate steps against them for such refusal. A police official conducting investigation of a crime is entitled to ask any public person to join the investigation and on refusal by said public person, the Investigating Officer has the power to take appropriate action against him/her under the law. The failure to do so by the Investigating Officer is suggestive of the fact that the case of the prosecution is an afterthought and is not worth credence.
14. In this regard reliance can be placed upon the judgment of the Hon'ble High Court of Delhi in case titled as Anoop Joshi v. State, 1992 (2) C.C. Case 314(HC), wherein, it has been held 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 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 State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 7 of 14 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."
15. Further, in the case titled as Nanak Chand v. State of Delhi, 1991 RLR 62, the Hon'ble High Court of Delhi observed as under: -
"(6)....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 witness from the public specially when they are available, may, as in the present case creates doubt.
They have again, churned out a stereo typed version...."
16. Also, in case titled as Sahib Singh v. State of Punjab, AIR 1997 SC 2417, the Hon'ble Apex Court held as under: -
".... Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. 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 State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 8 of 14 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."
17. Furthermore, in the case titled as Massa Singh v. State of Punjab, 2000 (2) C.C. Cases HC 11, conviction was set aside by the Hon'ble Punjab & Haryana High Court on the ground that it was obligatory on the part of Investigating Officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: -
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
18. Secondly, whenever a police official leaves or arrives at the police station, he is required to make a departure or arrival entry in the Daily Diary Register as per Chapter 22 Rule 49, Punjab Police Rules, 1934. The said provision provides 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 officer concerned and shall be attested by the latter personally by signature or seal."
State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 9 of 14
19. In the instant case, as per the prosecution's story, PW-1 had apprehended the accused while, he was on patrolling duty. The presence of the said police witness at the spot has been disputed by Ld. Counsel for the accused. Thus, to prove the presence of PW-1 at the spot, the prosecution should have proved on record the departure entry of said police official. However, no documentary or other evidence to show his presence at the date, time and place of alleged recovery has been proved on record. Consequently, the prosecution has failed to discharge its obligation to prove the presence of said police witness at the date, time and place of recovery as alleged. In this regard, reference can be made to the judgment of the Hon'ble High Court of Delhi in case titled as Rattan Lal v. State, 1987 (2) Crimes 29 wherein, it has been observed that:
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservation. 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 entry creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
20. Thirdly, in such like cases, prosecution is required to prove beyond all reasonable doubts that after seizure of the case property, there was no occasion for it to be tampered with and the seal remained intact till the time case property was produced in the State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 10 of 14 court. However, in the present case, as per the case of prosecution itself, seal after use was handed over by PW-2 to PW-1 who, being the only recovery witness is an interested witness. Evidently, the seal after use & prior to deposition of the case property at maalkhana was not handed over to an independent person. At this point, it would be apropos to refer to the observation made by the Hon'ble Delhi High Court in case titled as Safiullah v. State, 1993 (1) RCR (Criminal) 622, wherein, it has been observed as under:
"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."
21. Also, in Ramji Singh v. State of Haryana, 2007 (3) RCR (Criminal) 452, the Hon'ble Punjab & Haryana High Court held that "7. The very purpose of giving seal to an independent person is to avoid tampering of the case property."
22. Furthermore, the prosecution has neither examined the Malkhana Mohrar nor any other witness to prove that the case property was deposited in the malkhana. Even the malkhana register i.e. Register no. 19 was not produced to prove the relevant entries. Moreover, no evidence has been brought on record to show that when and by whom the case property was deposited at the Excise Laboratory. In the given facts & circumstances, the possibility of the case property or the samples having been State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 11 of 14 tampered cannot be ruled out. At this juncture, it would be apposite to refer to the judgment of Datu Ram v. State, 1996 I AD (Delhi) 521 wherein, while referring to observations made by the Hon'ble Apex Court in State of Rajasthan v. Daulat Ram 1980 CC Cases 83, it has been held by the Hon'ble Delhi High Court that the prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst so that the court could conclude that the seals remained intact throughout.
23. Judging on the touchstone of above-noted conspectus of facts & circumstances, this court has no reservation to hold that the possibility of case property having been tampered with, in the instant case, cannot be ruled out with certainty.
24. In light of the above discussed discrepancies, the prosecution has miserably failed to prove the recovery of illicit liquor itself from the possession of the accused beyond reasonable doubt and thus, even the presumption against the accused as enunciated under section 52 of Delhi Excise Act 2009, in respect of commission of offence under section 33 of Delhi Excise Act, does not come to the aid of the prosecution.
25. The three cardinal principles of Criminal Jurisprudence which a judge must adhere to while administering justice in criminal cases are that, firstly, the accused must be presumed to be innocent until he is proved to be guilty. Secondly, the onus to prove its case beyond all reasonable doubts lies State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 12 of 14 affirmatively on the prosecution & the benefit of doubt, if any, must necessarily go in favour of the accused and thirdly, this onus of the prosecution never shifts. There are catena of rulings as to this principle of law that the burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the court cannot record a finding of the guilt of the accused. Prosecution must stand on its own legs and must prove the story told by it at the very first stage. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused can be convicted.
26. In S. L. Goswami v. State of Madhya Pradesh; 1972 SCR (3) 948, the Hon'ble Apex Court had observed as under:
" ..... the onus of 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. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 13 of 14 he will be entitled to the benefit of reasonable doubt."
27. Further, in Kali Ram v State of Himachal Pradesh, AIR 1973 SC 2773 the Hon'ble Apex Court has observed that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable.
28. Keeping in view the above discussed facts, circumstances and evidence adduced, this court is of the considered view that the case put forward by the prosecution has many lacunas and the prosecution has despondently failed to establish its case beyond the shadow of all reasonable doubts and bring home the guilt of the accused. In view thereof, accused Amar Singh S/o Mahender Singh is hereby acquitted of the offence under section 33 of Delhi Excise Act, 2009.
29. File be consigned to record room after due compliance.
Announced in open court on this 20th day of August, 2025 (Ruby Neeraj Kumar) CJM/East/KKDCourt/Delhi State Vs. Amar Singh FIR No. 37/2020 PS Kalyanpuri 14 of 14