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1. Accused Sunil Pathak was found in possession of 24 petties (with 48 quarters each) of liquor make Naina Praimum Whiskey Rock and Strom Bottles Pvt. Ltd. Chandigarh for sale in Arunachal Pradesh. This recovery was effected from a vehicle make TATA Indigo bearing no. HR 55AT 2001 on 18.04.2016 at about 04:50 AM near bridge towards ITO road, Sarai Kale Khan, New Delhi within the jurisdiction of PS Sunlight Colony. As per the prosecution, this FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 2 of 18 vehicle was being driven by accused Sunil Pathak without permit or license to posses the same. Thus, accused has violated sections 33/38 read with section of Delhi Excise Act ['The Excise Act'] and 3/181 of M.V. Act.

2. Prosecution claims that as per police investigation, this vehicle was belonged to accused Sonu Behal and therefore apart from accused Sunil Pathak, accused Sonu Behal had also violated section 33/38 read with section 52 of Delhi Excise Act. It is further alleged that accused Sonu Behal (being owner of the aforesaid car) had handed over the said vehicle to accused Sunil Pathak which he was driving without license at the time of the incident and thus, he is also alleged to have violated section 5/180 M.V. Act.

16.Thus, in my opinion, with the presumption u/s. 52(2) of Delhi Excise Act being rebutted, it was for the prosecution to now show that infact, accused Sonu Behal was responsible for the transport of the liquor in question. That could have been done after finding out the status or role of Neeraj Malhotra. Nothing of the sought has been done by the prosecution and therefore, benefit of doubt shall have to be given to the accused Sonu Behal in this regard. I cannot persuade myself to say that accused Sonu Behal was the actual owner on the date of the alleged offence in view of the facts discussed above. Accordingly, he is acquitted for offence made punishable u/s. 33/38 of Delhi Excise Act read with section 52 of the said Act.

26. In my opinion, if I take a holistic view of the evidence, the evidence of PW1, PW2 and PW3 read with the other documentary evidence on record is sufficient to convict the accused Sunil Pathak herein u/s. 33 of the Excise Act for possessing 19 petties of illicit liquor in the car being driven by him bearing no. HR 55AT 2001. It is ordered accordingly.

FIR no. 190/16 State v/s. Sunil Pathak and Anr. Page no. 16 of 18

27. As far as offence u/s. 38 Delhi Excise Act is concerned, none of the witnesses produced by the prosecution claimed that the liquor found in possession of the accused Sunil Pathak was unlawfully imported or transported or manufactured or the accused had the knowledge qua non payment of prescribed duty thereupon. It appears that prosecution has majorly relied upon the evidence of PW1 and PW2 to show possession of liquor with the accused in contravention of section 33 of Delhi Excise Act only. Only because the liquor in this case had a noting that the same was for sale in Arunachal Pradesh cannot mean that the same has been unlawfully imported or transported or prescribed duty not paid thereupon. Such nothing raises a strong suspicion in that direction but in order to return a conviction u/s. 38 of Delhi Excise Act, it was for the prosecution to show that the possession of the accused was with the knowledge that the liquor has inter alia been imported or transported unlawfully or with the knowledge that the prescribed import duty has not been paid on the said liquor. With the prosecution witnesses being silent on the aforesaid facts, it is difficult to see as to how knowledge can be attributed to the accused qua the unlawful import or transportation of the liquor in question. In my opinion, since the prosecution witnesses has not spoken anything about the ingredients contained in section 38 of Delhi Excise Act, accused is entitled to be acquitted u/s. 38 of Delhi Excise Act. It is ordered accordingly.