Delhi District Court
State vs Om Parkash on 3 June, 2025
IN THE COURT OF SH. GAURAV KATARIYA, JMFC-07, NORTH-WEST
DISTRICT, ROHINI COURTS, DELHI
DLNW020011942012
MORE THAN TEN YEARS OLD CASE.
State Vs. Om Prakash
Case No 531676/16
FIR No. 126/11
PS: Shalimar Bagh
U/s : 33 Delhi Excise Act
JUDGMENT
: DLNW020428032022l
number of the case DLNW020011942012
Date of commission of offence : 20.4.2011
Date of institution of the case : 02.4.2012
Name of the complainant : Ct Om Singh
Name of accused and address : Om Prakash
Offence complained of or proved : U/s 33 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 03.6.2025
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Shorn of unnecessary details, the case of the prosecution is that on
State Vs Om Prakash FIR No. 126/11 No. 1 of 11
Digitally signed
by GAURAV
GAURAV KATARIYA
KATARIYA Date:
2025.06.03
16:55:43 +0530
20.4.2011 at about 5:35 pm at near Bridge Haidepur Canal, within thejurisdiction of PS, Shalimar Bagh, accused was found in possession of illicit
liquor as mentioned in the seizure memo mark A(96 quarter bottles for sale in
Haryana only) without any permit or license. Accordingly, he stands charged
for offence U/s 33 Delhi Excise Act.
2. Upon completion of investigation charge sheet u/s 173 Cr.P.C. was filed
and the accused was consequently summoned. Charge u/s 33 Delhi Excise Act
was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined 04
witnesses. PW 1 HC Suresh Kumar is the official who deposited the sample
quarter bottles duly sealed with the seal of BS vide RC no. 23/21/11 from
MHC(M) HC Mukesh. Thereafter, he deposited the same at Excise Laboratory
Delhi. PW 2 HC Ram Phal is the complainant. He was along with complainant
Ct. Om Singh on patrolling duty when he had allegedly, caught the accused red
handed with illicit liquor and witnessed the entire proceedings (i.e. preparation
of seizure memo, site plan, personal search memo, sealing of case property).
PW 3 SI Harish Kadyan is the IO of the case who proved the proceedings after
the apprehension of the accused ie. seizure memo, rukka, site plan, Form M-29,
arrest memo and personal search memo of the accused.
4. Prosecution evidence was closed vide order dated 09.05.2025. Statement
of accused was recorded u/s 313 on 09.05.2025, wherein all the incriminating
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GAURAV by GAURAV
KATARIYA
KATARIYA Date: 2025.06.03
16:55:53 +0530
State Vs Om Prakash FIR No. 126/11 No. 2 of 11
evidence was put to the accused, to which he refused the allegations and
stated that he has been falsely implicated in this case and recovery of case
property has been falsely implanted upon him. Further, the accused did not
wish to lead defence evidence.
5. Final Arguments heard. Case file perused.
6. It is argued by Ld. APP for the state that from the ocular and
documentary evidence on record, prosecution has proved beyond
reasonable doubt that accused was found in possession of illicit alcohol
without permit and submitted that accused be convicted of the offence
charged.
7. Per contra, it is argued by the Ld. Counsel for the accused that accused
is completely innocent and recovery of case property has been falsely planted
upon her. It is further submitted by Ld. Counsel that non joinder of public
witness despite availability casts shadow of doubt on prosecution story. It is
further argued by Ld. Counsel for the accused that tampering with the
contents of the sealed parcel cannot be ruled out as seal was not handed to the
independent witness. At the end, it is submitted that the prosecution has
miserably failed to prove its case beyond reasonable doubt and therefore,
the accused is liable to be acquitted of the alleged offence.
Digitally signed
by GAURAV
GAURAV KATARIYA
KATARIYA Date: 2025.06.03
16:55:58 +0530
State Vs Om Prakash FIR No. 126/11 No. 3 of 11
8. I have heard the rival submissions and have also carefully gone through
the entire material available on record and evidence led on behalf of the
prosecution.
9. It is cardinal principle of criminal jurisprudence that an accused is
presumed to be innocent and, therefore, the burden lies on the prosecution to
prove the guilt of the accused beyond reasonable doubt. The prosecution is
under a legal obligation to prove each and every ingredient of the
offence beyond any doubt, unless otherwise so provided by any statute. This
general burden never shifts and it always rests on the prosecution.
10. It is apposite to mention that sub section (1) of section 52 of Delhi
Excise Act, 2009 enunciates that in case of prosecution u/s 33, it shall be
presumed, until the contrary is proved, that the accused 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. Relevant extract of the said provision is reproduced:
“Presumption as to commission of offence in
certain cases. – (1) In prosecution 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,
Digitally signed
by GAURAV
GAURAV KATARIYA
Date:
KATARIYA 2025.06.03
16:56:04
+0530
State Vs Om Prakash FIR No. 126/11 No. 4 of 11
vessel, cart or other vehicle is used in the
commission 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 satisfies the court
that he had exercised due care in the prevention of
the commission of such an offence.”
11. But this presumption is rebuttable and accused can rebut the same by
either referring to the prosecution’s evidence or by adducing defence
evidence. Also, it should be noted that 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-requisite for the presumption under the
aforesaid provision being raised against the accused, it is imperative for the
prosecution to successfully establish the recovery of the said alleged articles
from the possession of the accused. It is only after the prosecution has proved
the possession of the alleged articles by the accused that the accused can be
called upon to account for the same.
12. However, for the reasons mentioned hereinafter, the prosecution has
failed to establish beyond reasonable doubt that the accused was found in
possession of the alleged 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.
13. It is a well settled proposition that non-joining of public witness
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by GAURAV
GAURAV KATARIYA
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2025.06.03
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shrouds doubt over the fairness of the investigation by police. Section 100(4)of the Cr.PC also casts a statutory duty on an official conducting search to
join two respectable persons of the society. Same has not been done in the
present case. This casts a doubt on the fairness of the investigation.
14. From the overall testimony of the witnesses, it appears that no sincere
efforts, have been made to join the public persons in the investigation. The
witnesses examined by the prosecution are police witness. Not even a single
public witness was examined by the prosecution nor joined in the
investigation and no plausible reason could be put forward by the prosecution
witnesses that for what reason they were unable to gather support from public
or independent witnesses to establish the guilt of the accused. Reference can
be taken from the decision of the Hon’ble Delhi High Court in the case of
Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
15. The failure on the part of the police personnel could only suggest that
they were not interested in joining the public persons in the police
proceedings. Failure on the part of the police officials to make sincere effort
to join public witnesses for the proceedings when they may be available
creates reasonable doubt in the prosecution story. Reference can be taken
from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC),
Hon’ble High Court of Delhi has observed as under;
Digitally signed
by GAURAV
GAURAV KATARIYA
KATARIYA Date:
2025.06.03
16:56:21 +0530State Vs Om Prakash FIR No. 126/11 No. 6 of 11
“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
shop keepers 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.”
16. In the instant case, the recovery was effected from the accused at the
busy spot. Hence, it could not be said that the public witnesses were not
present at the spot at the time of recovery. In fact, as per the testimony of IO
he admitted that the public persons were passing through the spot. He further
admitted that he did not serve any legal notice to the public persons.
However, surprisingly, the Prosecution Witnesses did not explain the reason
as to why public witnesses were not examined during the course of
investigation. They only stated that the public persons refused to join the
investigation. This reason given by the PWs is neither sufficient nor plausible.
Neither the details of those public persons were brought on record nor any
legal action was taken against those persons under relevant sections of law
who had declined to assist the police in investigation. If the public
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by GAURAV
GAURAV KATARIYA
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KATARIYA 2025.06.03
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persons were really present at the spot, then the police officials should havemade endeavor to get them join the investigation. They should have issued
notice asking them to join the investigation. On their refusal, necessary
action as per law could have been taken against them. Therefore, it is clear
that sincere efforts were not made to join independent witnesses despite their
availability which causes a serious dent in the story of the prosecution and all
these facts makes the alleged recovery very doubtful.
17. Further, the prosecution did not even bring on record necessary DD
entries to prove departure/arrival of the police officials from/at the police
station. At this stage, reference can be taken from the provision enshrined in
22 rule 49 of the Punjab Police Rules, which is reproduced as under;
“Chapter 22 rule 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. Note:- The term Police Station will include all
places such as Police Lines and Police Posts where
Register No. II is maintained.
18. Perusal of the above rule clearly suggests that the police officials are
mandated to record their time of arrival and departure on duty at or from the
Digitally signed
by GAURAV
GAURAV KATARIYA
Date:
KATARIYA 2025.06.03
16:56:36
+0530State Vs Om Prakash FIR No. 126/11 No. 8 of 11
police station. In the instant case, this provision has not been complied by theconcerned police witnesses. The relevant entries regarding the arrival and
departure of the police officials have not been proved on record. It has been
held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon’ble Delhi High Court
held that;
“if the investigating agency deliberately
ignores to comply with the provisions of the
Act the Courts will have to approach their
action with reservations. 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 entries creates a
reasonable doubt in the prosecution version
and attributes oblique motive on the part of
the prosecution.”
19. In present case, the seal was neither handed over to an independent witness. No
explanation has come on record as to why seal handing over memo was not
made or seal was not handed over to an independent witness. In these
circumstances, the possibility of tampering of case property cannot be ruled out.
Reliance is placed on Ramji Singh V/s 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
Digitally signed
GAURAV by GAURAV
KATARIYA
KATARIYA Date: 2025.06.03
16:56:41 +0530
State Vs Om Prakash FIR No. 126/11 No. 9 of 11
laboratory, the seal should not be available to the prosecuting
agency and in the absence of such a safeguard the possibility
of seal, contraband and the samples being tampered with
cannot be ruled out”.
20. Therefore, in view of the above, this creates further doubts in the
case of prosecution as to whether the case property allegedly recovered from
the accused has not been tampered with.
21. Perusal of record shows that as per the deposition of PW 3 SI Harish
Kadyan, form M-29 was not placed on record. PW-3 SI Harish Kadyan
further admits that he did not file the RC bearing no. 23/21/11 on the record.
PW 3 deposed that he along with Ct. Ramphal took the case property to the
police station on his personal motorcycle however, PW 2 HC Ram Phal
deposed that he does not remember how the case property was taken to PS
and by whom. It is pertinent to mention that IO did not file the road certificate
which raises a doubt upon the samples taken by investigating agency and thus
casts a doubt upon the story of prosecution. It is imperative to mention that
one of the witness namely Ct. Om Singh was dropped as prosecution could
not secure his presence. Further prosecution witnesses have deposed that case
property was seized before the registration of FIR whereas the seizure memo
bears the FIR number beforehand. This gives rise to two inferences that either
the FIR was recorded prior to the alleged recovery of the case property or
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by GAURAV
GAURAV KATARIYA
Date:
KATARIYA 2025.06.03
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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. That being so, benefit arising out of such a
situation must necessarily go to the accused. Reference be made to the
judgment of Hon’ble Delhi High Court in the case of Giri Raj v. State, 83
(2000) DLT 201.
22. It is true that evidence is to be weighed and not counted but in this
case whatever evidence has been produced by the prosecution is not sufficient
to fortify the edifice of the prosecution’s case and the prosecution fails to
prove all the links. In case where the prosecution has failed to prove all the
links, the benefit of doubt has to be given to the accused. As such the accused
deserves acquittal in the present case.
23. Therefore, in view of the above discussions and findings, I find that
the prosecution has failed to prove the guilt of the accused in the present case
beyond reasonable doubt.
24. Hence, accused Om Prakash is acquitted for the offence u/s 33 of
Digitally signed
by GAURAV
Delhi Excise Act. GAURAV KATARIYA
KATARIYA Date:
2025.06.03
16:56:54 +0530Dictated directly into the computer (Gaurav Katariya)
and announced in the open Court, JMFC-07/North-West/Rohini
On this 3rd day of June, 2025 Delhi/03.6.2025
This judgment consists of 11 pages and all bears my signature.
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