Delhi District Court
Jitender Antl vs The State Nct Of Delhi on 18 August, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-003319-2023
Criminal Appeal No.: 54/2023
1. JITENDER ANTIL,
S/o. Sh. Rajender Antil,
R/o. VPO Mehandipur,
PS. Murthal, District Sonepat,
Haryana.
2. SANJAY KUMAR,
S/o. Sh. Ram Karan,
R/o. VPO Mehandipur,
PS. Murthal, District Sonepat,
Haryana. ... APPELLANTS
VERSUS
STATE (NCT OF DELHI). ... RESPONDENT
Date of filing : 03.03.2023
Date of institution : 04.03.2023
Date when judgment was reserved : 22.05.2025
Date when judgment is pronounced : 18.08.2025
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 ( hereinafter, referred to
as ‘Cr.P.C./Code’) against the judgment dated 19.01.2023
(hereinafter referred to as ‘impugned judgment’), passed by the
learned Metropolitan Magistrate-02/Ld. MM-02, Central, Tis
Hazari Courts, Delhi (hereinafter referred to as the ‘Ld. Trial
Court/Ld. MM’) in case bearing; ‘State v. Jitender Antil, Etc., Cr.
Case No. 296641/2016’, arising out of FIR No. 887/2014, PS.
Timarpur, convicting the appellants, namely, Jitender Antil and
Sanjay Kumar (hereinafter collectively referred to as the
‘appellants’) for the offence(s) punishable under Section 33 of the
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 1 of 40
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.18
15:33:43
+0530
Delhi Excise Act, 2009 (hereinafter referred to as ‘Delhi Excise
Act/DE Act/Excise Act‘) read with Section 34 of the Indian Penal
Code, 1860 (hereinafter referred to as the ‘IPC‘), and the
consequent order of sentence dated 09.02.2023 (hereinafter
referred to as ‘impugned order’), passed by the Ld. Trial Court,
sentencing/awarding the appellants, rigorous imprisonment for a
period of 01 (one) year along with fine of Rs. 50,000/- (Rupees
Fifty Thousand only), each, for the said offence, and in default of
payment of the said fine/amount, both to undergo simple
imprisonment for a period of 02 (two) month. The appellants were
further permitted, benefit under Section 428 Cr.P.C. (hereinafter
impugned judgment and impugned order are collectively referred
to as the ‘impugned judgment and order’).
2. Succinctly, the case of the prosecution against the
appellants is that on 29.12.2014, on receipt of PCR Call vide DD
No. 34A, the concerned police officials reached at the spot, i.e.,
Gopalpur Red Light (hereinafter referred to as the ‘spot’), where
they met with the complainant, namely, Ct. Khushal ( hereinafter
referred to as the ‘complainant’). Thereupon, Ct. Khushal handed
over two persons, namely, Jitender Antil and Sanjay Kumar (the
appellants herein) to the concerned police officials and got his
statement recorded. Notably, under his complaint/statement, the
complainant inter alia asserted that on 29.12.2014 at around 08:30
p.m., he was present at the spot, while on patrolling duty. At that
point in time, the complainant is asserted to have observed that one
silver colour Honda City car bearing registration no. DL-6CJ-2999
(hereinafter referred to as the ‘said car/vehicle in
question/offending vehicle’) overtook all the vehicles present at
the redlight and endeavored to cross the same (तो देखा कि Red Light
पर एक DL6CJ 2999 Colour NW Silver Honda City Car Old Model सभी
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.08.18
15:33:49 +0530
गाड़ियो जो Red Light पर खड़ी थी को Pass करता हु आ सबसे आगे आया व Red
Light को पार करने लगा). Upon this, the complainant is avowed to have
forcefully stopped the said vehicle and apprehended the driver
thereof, whose identity was later on revealed as Jitender Antil
(appellant no. 1), whilst the person sitting on the seat next to the
driver’s seat was determined to be Sanjay Kumar (appellant no. 2).
The complainant further proclaimed that on checking the said car,
illegal alcohol was determined/found, regarding which,
information was given telephonically by the complainant to the
Duty Officer, PS. Timarpur (चैक करने पर इस कार में अवैध शराब भरी मिली
जिसकी बाबत मैं नें DO Timarpur साहब को बजरिये टे लिफोन इतला दी थी). It is
further the case of the prosecution, on checking the said car, pettis
(cartons) of illegal alcohol were found in the dickey and cabin of
the said vehicle, besides, some open addha (375 ml) bottles were
found in the dickey thereof (जो चैक करने पर Honda City Car No.
DL-6CJ-2999 की डिग्गी व Cabin में नाजायज शराब की पेटी भरी थी तथा डिग्गी में
कु छ खुले अध्धे थे।). Further, as per the prosecution, some public
persons were asked to join the search and recovery proceedings,
however, no one is asserted to have joined the said proceedings
(मन SI ने तीन चार राहगुजरान को शामिल कार्यवाही होने को कहा जो सभी अपनी-2
जायज मजबूरी जाहिर करके बिना नाम पता बताऐ मौका पर से चले गये।).
Consequently, the opened 72 addha (375 ml) bottles, whereupon,
particulars, i.e., ‘rasila santra masaledaar desi sharab’, NV
Distilleries Ltd., bottled by NV Distilleries Ltd. and Batch No.
565/14, dt. 12.14, were specified, were kept in a plastic bag/ katta
in four batches, i.e., batch no. 510 with 16 addha; batch no. 565
with 23 addha; batch no. 567 with 12 addha; and batch no. 585
with 17 addha, each containing 375 ml. alcohol (समय को जाया न करते
हु ऐ Car की डिग्गी से खुले बिना पेटी 72 अध्धे मिले जिन पर रसीला सन्तरा मसालेदार
देशी शराब लिखा है। जो सभी बरामदा 72 अध्धो को एक प्लास्टिक के कट्टे में रखे
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.08.18
15:33:55 +0530
गये है जो इस कट्टे में Batch No. 510 के 16, Batch 565 के 23, 567 के 12 व 585 के
17 अध्धे है। जिनमें प्रत्येक पर 375 ML शराब है।). Thereafter, 24 (twenty
four) pettis were recovered, each found containing 50-50
quarters/paua (180 ml) alcohol (इसके बाद 24 Peti NV की बरामद हु ई जिनमें
प्रत्येक 50-50 Quarters है।). Markedly, as per the prosecution, on each
such bottles, ‘rasila santra masaledaar desi sharab’ were written
and the same were determined to be of batch nos. 463, 464, and
518/14 (जो प्रत्येक पव्वे पर रसीला संतरा मसालेदार देसी शराब Batch No.
463,464,518/14 के है।). Thereafter, 5 (five) pettis of addha and 9
(nine) pettis of ‘nimbu addha’ were seized, which were each found
containing 24-24 addha bottles. Correspondingly, sample bottles
from each of the pettis were taken out as well as labelled and
seized, whereupon sample seal was placed, and the seal was
handed over to Ct. Rahul (कट्टा व नमुना जात के मुहं को सफे द कपड़े से
बाधंकर UA की मौहर से सर्वमोहर किया गया व मोहर गा इस्तेमाल Const. Rahul
No. 2709/N के हवाले की गयी।). Concomitantly, Form M-29 was filled
on the spot and the recovered illegal alcohol was seized by the
police officials.
2.1. Ergo, under aforesaid facts and circumstances, the
instant FIR came to be registered, and investigation ensued.
Notably, during the course of investigation, site plan was prepared,
and the statements of various witnesses were recorded.
Correspondingly, as per the prosecution, the ownership of the
aforesaid car was determined to be in the name of one, Subhash
Chandra, who was determined to be evading his arrest.
Consequently, accused Subhash Chandra was declared proclaimed
offender vide order dated 04.04.2016 by the concerned Ld. MM,
Tis Hazari Courts, Central District (मुल्जिम सुभाष चन्द्र गाडी न०
DL6CJ2999 subsequent owner है जो काफी तलाश पर भी नही मिल सका था।
जिसको दिनांक 04.04.2016 को माननीय अदालत श्री पवन कु मार MM, Tis Hazari
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.08.18
15:33:59
+0530
Court ने PO Declare किया है।). Concomitantly, FSL report qua the
chemical analysis of the seized samples was obtained.
Accordingly, upon conclusion of investigation in the instant case,
the chargesheet came to be filed before the Ld. Trial Court.
2.2. Markedly, upon such chargesheet being filed, Ld.
Trial Court vide its order dated 09.05.2016 took cognizance of the
offence(s), specified thereunder and subsequently, on compliance
of the provisions under Section 207 Cr.P.C., arguments on charge
were addressed by/on behalf of the appellants and the State.
Consequently, vide order dated 02.08.2018, Ld. Trial Court,
directed framing of charges inter alia under the following
observations;
“…Arguments on point of charge submitted.
Vide separate order both the accused persons are
charged for offence punishable u/s. 33 of Delhi Excise
Act r/w. Sec. 34 IPC to which they pleaded not guilty
and claimed trial.
To come up for PE on …”
(Emphasis supplied)
2.3. Apposite at this stage to reproduce the charges
framed against the appellants by the Ld. Trial Court vide order
dated 02.08.2018, as under;
“…I, ***, Metropolitan Magistrate-02, (Central),
Tis Hazari Courts, New Delhi, do hereby charge you
Jitender Antil S/o. Rajender Antil and Sanjay Kumar
S/o. Ram Karan as under:
That on 29.12.2014 at about 8.30 PM at the red
light of Gopalpur Village, Timar Pur, Delhi within the
jurisdiction of PS Timar Pur you Jitender was driving
one Honda City car bearing No. DL6CJ 2999 and
Sanjay was present in the car with you and you both in
furtherance of your common intention were carrying
illicit liquor in the car which was a total of 41
cartons/petties of different descriptions as per the
seizure memo without any license or permit and you
thereby committed an offence u/s 33 of Delhi Excise
Act r/w sec. 34 IPC within the cognizance of this
court.
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I hereby direct you to be tried by this court for the
aforesaid offence…”
(Emphasis supplied)
2.4. Relevantly, during the course of trial, the
prosecution adduced 06 (six) prosecution witnesses, i.e.,
PW-1/HC Rahul Khokher; PW-2/HC Khushal Singh; PW-3/HC
Ram Niwas; PW-4/Jasvinder Singh; PW-5/SI (Retd.) Usman Ali;
and PW-6/HC Jaswant. Pertinent to note that during the course of
trial before the Ld. Trial Court, the appellants, admitted the
genuineness and correctness of Excise Lab Report No.
SZD020698-SZD020739 as Ex. AD1, in terms of the provisions
under Section 294 Cr.P.C. on 22.09.2022, leading to the Ld. Trial
Court dropping Dy. Chemical Examiner Bijender Singh from the
list/array of prosecution witnesses. Subsequently, in conclusion of
recording of prosecution evidence, statements of the appellants, in
terms of the provisions under Section 313 Cr.P.C. were recorded
on 23.12.2022. Significantly, both the appellants opted not to lead
any evidence in support of their cause/DE. Ergo, upon the
appellants and the State addressing/concluding their respective
arguments in the instant case, as aforementioned, the Ld. Trial
Court vide holding the appellants guilty of the offence under
Section 33 of the Delhi Excise Act read with Section 34 IPC under
the impugned judgment, sentenced them in the manner, as
specified under the impugned order/order of sentence.
3. Learned Counsel for the appellants submitted that
the impugned judgment and order were passed by the Ld. Trial
Court, without application of mind, making the same illegal,
unjustified and against all cannons of law. As per Ld. Counsel, the
impugned judgment is incorrect both on facts as well as in law,
making the same liable to be set aside at the outset. It was further
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.08.18
15:34:08 +0530
submitted that the Ld. Trial Court erred in not appreciating the
facts and circumstances of the present case, rather, passed the
impugned judgment and order in utter haste and that too in
contravention of the settled principles of law. As per the Ld.
Counsel, while passing the impugned judgment and order, the Ld.
Trial Court failed to appreciate that no material and/or evidence
was placed/brought before it, necessitating and/or validating the
conviction of the appellants under Section 33 of Delhi Excise Act
read with Section 34 IPC. In this regard, it was further submitted
that the Ld. Trial Court, in the absence of material and evidence,
wrongly/erroneously relied upon the unproved facts and wrongly
convicted as well as sentenced the appellants. Ld. Counsel further
submitted that the Ld. Trial Court, while rendering the impugned
judgment and order, not only ignored the facts before it, rather,
also overlooked the settled position of law that in case, where two
alternatives/views are equally possible, court(s) must accept the
view which is favorable to the accused. As per the Ld. Counsel, the
Ld. Trial Court has further disregarded the settled position of law
that in a case where reasonable doubt arises regarding the guilt,
benefit of the same cannot be withheld from an accused. Even
otherwise, as per the Ld. Counsel, the arguments and judicial
dictates, relied upon by/on behalf of the appellants were not
considered by the Ld. Trial Court, while reaching the conclusion of
guilt of the appellants. Ld. Counsel for the appellants further
submitted that while passing the impugned judgment and order,
the Ld. Trial Court failed to appreciate that the testimonies of the
prosecution witnesses are unreliable, besides the same are not
sufficient to prove appellants’ guilt, ‘beyond reasonable doubt’ in
the instant case.
3.1. Ld. Counsel further submitted that the version of
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.18
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incident put forth by various prosecution witnesses is completely
irreconcilable and is insufficient to attract any culpability against
the appellants herein. In this regard, Ld. Counsel outrightly
contended that the Ld. Trial Court failed to appreciate that there
are only two ‘star witnesses’ of the prosecution’s case, i.e.,
PW-2/HC Kushal Singh and PW-5/Retd. SI Usman Ali (IO of the
case) and that their depositions are totally contrary to each other.
As per the Ld. Counsel, PW-2/HC Kushal Singh asserted under his
cross examination that he sat inside the car, which was being plied
by appellant no. 1 and found alleged illicit liquor in petti (boxes)
inside the front two seats. However, as per the Ld. Counsel, the
said version of PW-2 is utterly unreliable as the vehicle, allegedly
used in the offence is of low height and the said petti (boxes)
cannot be inserted inside the front two seats of the said vehicle.
Even otherwise, as per the Ld. Counsel, it is the own version of
PW-2 that the remaining alleged illicit liquor was recovered from
the dickey of the car. In this regard, it was further fervently argued
by the Ld. Counsel for the appellants that not only is the version of
alleged incident, deposed by PW-2 contradictory to the version put
forth by PW-5 under his deposition, rather, the prosecution/said
witness(es) have failed to prove any genuine endeavor to join
public persons in the alleged search and seizure proceedings. In
fact, as per the Ld. Counsel, PW-2, nowhere under his deposition
asserted that he was assisted by someone from the public in
unloading the alleged illicit liquor from the appellants’ car. As per
the Ld. Counsel, same is despite the fact that admittedly the place
of alleged occurrence remained thickly congested and the vehicles
as well as pedestrians used to wander in the said passage at all
point in time. Ergo, despite the same, Ld. Counsel vehemently
reiterated that no public witnesses/shopkeepers and persons in the
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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vicinity of alleged spot of occurrence were joined during the
investigation, besides, the concerned investigating officer/IO did
not even attempt to obtain the record(s), i.e., names/particulars of
any such public persons, who could have been joined or those who
refused to join the investigation, upon being asked, as well as no
CCTV footage of the alleged incident spot, which could have
facilitated the court in the ascertaining the correct factual scenario
of the case, was retrieved and/or placed on record by the
prosecution. Accordingly, as per the Ld. Counsel the possibility of
the alleged recovery, being planted upon the appellants cannot be
ruled out under such circumstances.
3.2. Ld. Counsel for the appellant further submitted that
even the material placed on record by the prosecution is
insufficient to bring home any culpability against the appellants
herein. In this regard, Ld. Counsel strenuously contended that the
Ld. Trial Court failed to appreciate that though it is the case of the
prosecution that appellant no. 1 was plying Honda City Car
bearing no. DL-6CJ-2999 and that the same was seized by the
police officials as well as later on released on superdari to its
owner, after taking its photographs, however, the Ld. Trial Court
failed to consider that when the said photographs were shown to
the witness during evidence, no number plate was shown on the
said vehicle, creating doubt on the version of the prosecution.
Further, as per the Ld. Counsel, the photographs of the case
property (liquor), exhibited as Ex. P1 (Colly.) do not show the
exact numbers of pettis (boxes) or even the liquor bottles are
visible in the same. Concomitantly, as per the Ld. Counsel, no
katta (gunny bag) was visible in the said photographs, belying the
case pf the prosecution. Correspondingly, as per the Ld. Counsel,
the Ld. Trial Court failed to appreciate that the prosecution failed
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ABHISHEK GOYAL
Date:
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to produce the Chemical Analyzer, who allegedly
evaluated/checked the samples of the alleged illicit liquor. Ergo, as
per the Ld. Counsel, the report of the Chemical Analyzer remained
unproved, favoring the case of the appellants. It was further
submitted that even the search and seizure proceedings were not
properly conducted by the concerned police officials/IO in the
instant case. In this regard, it was submitted that the Ld. Trial
Court failed to appreciate that the IO had taken a bottle from each
petti and the same was sent for chemical examination, however,
the other bottles were not proved to contain alcohol. Ld. Counsel
further submitted that PW-1 claimed under his deposition that 38
(thirty eight) pettis (24+5+9) of liquor and one katta, containing 72
(seventy two) quarter bottles were recovered from the possession
of the appellants. However, despite the same, only 42 (forty two)
samples were sent for forensic analysis/FSL, creating
contradiction in the version put forth before the Ld. Trial Court. As
per the Ld. Counsel, as per the mandate of the superior courts,
sample from each such bottle should have been sent for chemical
examination, so as to successfully bring home charges/culpability
against the appellants herein. However, Ld. Counsel asserted that
the said mandate was not followed by the prosecution in the instant
case.
3.3. Ld. Counsel further vehemently reiterated that the
Ld. Trial Court failed to consider that the concerned IO/police
officials did not follow due procedure while conducting search and
seizure proceedings. In this regard, Ld. Counsel asserted that the
concerned IO did not keep the sample of alleged recovered liquor
before destroying the entire case property and the sample of
alleged recovery ought to have been produced during evidence to
prove the case property. However, as per Ld. Counsel, in the
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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instant case, no proper procedure was followed by the
prosecution/IO in the present case. Correspondingly, as per the Ld.
Counsel, there are material contractions in the alleged time of
occurrence, wherein, though, as per the prosecution the incident is
alleged to have taken place at around 08:30 p.m., on 29.12.2014,
however, the time of occurrence is specified as 07:30 p.m. on the
rukka. Further, as per the Ld. Counsel, despite the information of
the alleged occurrence having reached at the police station at 10:45
p.m., the reasons for the FIR number, being specified on various
documents/seizure and recovery memos in the instant case is not
forthcoming. Accordingly, in light of the foregoing, Ld. Counsel
for the appellants echoed that not only did the Ld. Trial Court fail
to consider the truth of circumstances and passed its
judgment/decision in haste, rather, did not properly
appreciate/examine the facts of the present case, wrongly holding
the appellants guilty of the aforementioned offences. Even
otherwise, it was submitted by the Ld. Counsel that the order of
sentence was also passed by the Ld. Trial Court, whimsically,
while failing to appreciate that the appellants were of young age at
the relevant point in time, as well as responsible for the look after
and take care of their respective family members. Ld. Counsel
further vehemently argued that the punishment/penalty must not
be retributive in nature, rather, humanizing, considering that
sentencing the appellants with severe sentence would subject their
family members to grave depravity. Further, as per the Ld.
Counsel, substantial time has lapsed since the incident in question
and in case relaxation/leniency is not afforded to the appellants,
serious/severe repercussions may ensue to their physical and
mental well-being. Consequently, the Ld. Counsel for the
appellants inter alia prayed that the present appeal be allowed, and
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ABHISHEK GOYAL
GOYAL Date: 2025.08.18
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the impugned judgment and order be set aside. In the alternate, Ld.
Counsel submitted that the appellants be permitted/granted the
benefit/relaxation in terms of the provisions under the Probation of
Offenders Act, 1958 (hereinafter referred to as the ‘Probation of
Offenders Act‘) and/or Section 360 Cr.P.C. In support of the said
contentions, reliance was placed upon the decision(s) in; Shambu
Hindurao Deshmukh v. State of Maharashtra, 2008 (1) JCC (SC)
542.
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order was passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
Ld. Addl. PP for the State further submitted that the testimony of
the witnesses brought forth on record are not only unblemished
and consistent, rather, unerringly point out towards the only
inference of guilt of the appellants. Further, as per the Ld. Addl. PP
for the State, omission of joining public witnesses, at the stage of
apprehension and recovery from the appellants is not detrimental
to the prosecution case, especially when the same stands duly
proved from the consistent testimonies of witnesses adduced by
the prosecution. Even otherwise, as per the Ld. Addl. PP for the
State, the appellants have failed to rebut the onus of prove, as
envisaged under Section 52 of the Delhi Excise Act.
Concomitantly, it was submitted by the Ld. Addl. PP for the State
that no ground of any indulgence or relaxation even in the sentence
granted to the appellants is made out, besides considering the
gravity of offence involved, the appellants are not entitled to the
benefit of the provisions under the Probation of Offenders Act.
Accordingly, Ld. Addl. PP for the State submitted that the present
appeal deserves to be dismissed at the outset, as grossly malicious
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ABHISHEK GOYAL
GOYAL Date:
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and devoid of merits.
5. The arguments of Ld. Counsel for the appellants as
well as that of Ld. Addl. PP for the State have been heard and the
record(s), including the Trial Court Record and the case law(s),
relied by the party(ies) as well as the written
submissions/arguments, filed on behalf of the appellants have been
thoroughly perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal
against conviction. In this regard, this Court it is pertinent to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC
621, wherein the Hon’ble Court, while delving into the ‘scope ans
ambit’ of appellate court’s jurisdiction inter alia noted as under;
“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can be
relied upon, then whether the prosecution can be said
to have been proved beyond reasonable doubt on the
said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference
from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated
in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
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ABHISHEK GOYAL
GOYAL Date:
2025.08.18
15:34:41 +0530
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the Court really applied its mind to the facts
of the case as particularly when the offence alleged is
of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to reappreciation
of the entire material placed on record of the trial court and to
arrive at an independent conclusion as to whether the said evidence
can be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not required to consider the question
of law, rather, also question of facts to affirmatively reach a
conclusion of guilt or innocence of an accused. In fact, it is trite
law1 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
even extents until an accused is held guilty by the final court of
appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being wary of the aforesaid principles,
however, before proceeding with the determination of the rival
contentions of the parties, it would be pertinent to reproduce the
relevant provisions under law/Delhi Excise Act/DE Act, as under;
“2. Definition-In this Act, unless the context
otherwise requires;
*** *** ***
(17) “country or traditional liquor” means plain or
spiced spirit which has been manufactured in India
from material recognized as base for country or
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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ABHISHEK GOYAL
GOYAL Date:
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15:34:46 +0530
traditional spirit namely mahua, rice, gur, molasses
etc. and notified as such liquor by the Government;
*** *** ***
(39) “Indian liquor” means liquor manufactured in
India by process of distillation or using alcohol
obtained by distillation such as whisky, brandy, rum,
gin, vodka, liqueurs, but does not include country
liquor or fermented liquor;
(40) “intoxicant” means and includes-,
(a) any liquor;
(b) any spirit;
(c) any intoxicating drug;
(d) any other article, which the Government may
from time to time declare to be intoxicant, except the
substances covered under the Narcotic Drugs and
Psychotropic Substances Act, 1985, for the purpose of
this Act;
*** *** ***
(43) “Licence” means a licence granted under this
Act and the rules framed thereunder;
*** *** ***
(46) “liquor” means any Alcoholic beverage and
includes whisky, brandy, beer, wine, toddy, tari,
pachwat, vodka, gin, tequila, country liquor, arrack
and intoxicating liquid consisting of or containing
alcohol as may be specified under BIS standard
besides any similar substance which the Government
may by notification declare to be liquor for the
purpose of this Act;
*** *** ***
33. Penalty for unlawful import, export, transport,
manufacture, possession, sale, etc.-Whoever, in
contravention of provision of this Act or of any rule or
order made or notification issued or of any licence ,
permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or
removes any intoxicant;
(b) constructs or work; any manufactory or
warehouse;
(c) bottles any liquor or purposes of sale;
(d) uses, keeps or has in his possession any
material, still, utensil, implement or apparatus,
whatsoever, for the purpose of manufacturing any
intoxicant other than today or tan;
(e) possesses any material or film either with or
without the Government logo or logo of any State or
wrapper or any other thing in which liquor can be
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ABHISHEK GOYAL
GOYAL Date:
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15:34:51 +0530
packed or any apparatus or implement or machine for
the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys
any intoxicant beyond the prescribed quantity,
shall be punishable with imprisonment for a term
which shall not be less than six months but which may
extend to three years and with fine which shall not be
less than fifty thousand rupees but which may extend
to one lakh rupees…”
(Emphasis supplied)
10. Significantly, it is observed from above that Section
33 of the Delhi Excise Act inter alia penalizes possession of any
intoxicant beyond the prescribed quantity, i.e., in contravention of
the provisions of the said enactment as well as the rules made
thereunder. In turn, the term, ‘intoxicant’ is defined under Section
2(40) of DE Act to mean and include any liquor, which term
(liquor), is defined under Section 2(46) of the said enactment as,
“any Alcoholic beverage and includes whisky, brandy, beer, wine,
toddy, tari, pachwat, vodka, gin, tequila, country liquor, arrack and
intoxicating liquid consisting of or containing alcohol as may be
specified under BIS standard besides any similar substance which
the Government may by notification declare to be liquor for the
purpose of this Act…” Clearly, the objective behind the said
provision, can be intelligibly deduced is to regulate the
importation, exportation, transportation, manufacture, possession,
sale, etc. of intoxicant, including liquor and to provide for
penalties/sanctions for contravention of the mandate prescribed
under the law as well as the rules made thereunder. Undoubtedly,
the superior courts2 have persistently avowed that the acts of
bootlegging and illegal sale of liquor, contrary to the provisions of
Delhi Excise Act, is a big menace to the society and that the same
needs to dealt with a ‘heavy hand’. However, while construing and
2
Monika v. State NCT of Delhi and Ors. (03.10.2024 – DELHC): MANU/DE/6894/2024.
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 16 of 40 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.18 15:34:55 +0530
applying the penal provisions under the DE Act in a given case,
courts are obligated to be wary of the hallowed principle3 of law
that penal provisions are required to be construed strictly.
11. Ergo, being cognizant of the principles hereinunder
noted, this Court would proceed with the determination of the
merits of the case, in view of the rival contentions of Ld. Counsel
for the appellants and that of Ld. Addl. PP for the State. In
particular, this Court deems it apposite to outrightly make a
reference to the deposition of PW-1/HC Rahul Khokher, who
deposed that on 29.12.2014, he was posted as Constable at PS.
Timarpur and on that day, at around 08:45 p.m., ASI Usman Ali,
received information vide DD No. 34A, regarding apprehension of
two persons with illicit liquor in one vehicle at Gopalpur red light
by Ct. Khushal. Further, as per PW-1, he along with ASI Usman
Ali reached at the said spot, where one car of Honda City make,
bearing registration no. DL-6CJ-2999 was found and Ct. Khushal
produced two persons before ASI Usman Ali. It was further
deposed by PW-1 that on interrogation, the said persons revealed
their identities as Sanjay and Jitender. Correspondingly, as per
PW-1, the IO searched the said car, where 24 (twenty four) pettis
(cartons) of masaledar liquor in quarter bottles were found in a
dickey (car’s boot) and 72 (seventy two) quarter bottles were found
kept in one katta in car’s boot. As per PW-1, 05 (five) other pettis
(cartons) of different make and 09 (nine) other petties (cartons) of
quarter bottles were also found lying in dickey. Thereafter, as per
PW-1, the IO recorded the statement of Ct. Kushal, as well as
prepared the rukka, which was handed over to him/PW-1 for the
registration of FIR. Consequently, as per PW-1, he took the
3
Emp. State Insurance Corporation v. H.M.T. Ltd. & Ors. (11.01.2008 – SC): MANU/SC/0488/2008.
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same/rukka to the police station and got the FIR registered.
Thereafter, as per PW-1, he returned to the spot along with copy of
FIR and original rukka, which was handed over to the IO. PW-1
further testified that the IO seized the car vide seizure memo Ex.
PW1/A and also counted the quarter bottles in each pettis and took
one sample bottles from each of the pettis. Correspondingly, as per
PW-1, the case property was sealed with the seal of ‘UA’ and the
sample bottles were also sealed with the seal of ‘UA’, after
wrapping them in white cloth. Thereafter, as per PW-1, the IO
seized the case property vide seizure memo Ex. PW1/B and after
interrogation, the IO is further asserted to have arrested the
accused persons/appellants as well as conducted their personal
search vide memos Ex. PW1/C, Ex. PW1/D, Ex. PW1/E and Ex.
PW1/F. Further, as per PW-1, the IO also got the appellants
medically examined and deposited the case property in malkhana.
Pertinently, PW-1 identified the case property, i.e., recovered
illicit liquor from their photographs (Ex. P1 (Colly.)), considering
that the original case property was already destroyed pursuant to
order dated 11.05.2018, issued by the Deputy
Commissioner/Assistant Commissioner, Excise, New Delhi.
Correspondingly, PW-1 also correctly identified the appellants as
the apprehended accused persons, as well as the Honda City car,
used by the appellants from its photograph (Ex. P2), before the Ld.
Trial Court.
12. Pertinently, during the course of his cross
examination, PW-1, affirmed as under;
“XXXXXX by ***, Id. Counsel for accused.
I do not remember whether secret informer had
told to the IO any particulars or the registration
number of the vehicle in which illicit liquor was
found. When the accused was apprehended I was not
present at the spot. Vol. I was present in PS and after
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.08.18
15:35:03 +0530
receiving the information, I along with IO went to the
spot. Ct. Khusal alone was present at the spot when I
along with IO reached there. 41 petties were
recovered from the vehicle. When I reached on the
spot above said petties of illicit liquor was lying in the
boot/dicky space only of the vehicle. We departed on
bike from the PS at about 08:40 PM for the spot. We
reached within 5-6 minutes. I do not remember
whether accused persons were sitting in the car or was
standing outside the car. I, IO and Ct. Khusal checked
the vehicle. No other illicit liquor found from any
other part of the vehicle. I left the spot at about 10:30
PM for registration of FIR. IO prepared all the
documents at the spot while sitting on the bike. IO
prepared documents after registration of FIR. IO did
not prepare any other document except rukka before
registration of FIR. IO prepared rukka in my presence.
Finally we left the spot at after 12 midnight. IO had
informed one of the relative/friend of the accused
about his arrest but I cannot tell the name of that
person. I had signed all the documents after reading
the same. IO had mentioned number of the seized case
property, however, I do not remember the serial
numbers. I had refreshed my memory before
deposition. It is wrong to suggest that I am not aware
about the serial number as IO did not give serial
number to the seized property. It is wrong to suggest
that I do not know have any knowledge about the
content mentioned in seizure memo Ex. PWI/B as
same was not prepared in my presence and later on. I
had signed the same at the instance of IO. Whatever I
have stated in my examination in chief is correct
account of incident which was happened before me. It
is wrong to suggest that case property has not been
recovered from the vehicle or that same has been
planted on the accused in order to implicate in present
case or that all the paper work is done at PS or that I
did not visit the spot at any point of time. It is wrong to
suggest that I am deposing falsely…”
(Emphasis supplied)
13. Here, this Court deems it further apposite to refer to
the deposition of PW-2/HC Khushal Singh/complainant, who
avowed before the Ld. Trial Court that on 29.12.2014, he was
posted at Constable at PS. Timarpur and that on the said day,
he/PW-2 was posted at Gopalpur Red Light, outer ring road.
Further, as per PW-2, at around 07:30 p.m., when he was present,
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ABHISHEK GOYAL
GOYAL Date: 2025.08.18
15:35:08 +0530
alone, at Gopalpur Red Light, he noticed that the driver of one car
of Honda City make and bearing registration no. DL-6CJ-2999,
was trying to jump/cross red light. Consequently, PW-2 asserted
that he gave a signal to the said car, upon which the same stopped.
Thereafter, as per PW-2, noticed that there were 02 (two) persons
sitting in the said car, including its driver. As per PW-2, he
apprehended the driver of the said car and on inquiry, he found
illicit liquor, kept in said car. Consequently, as per PW-2, he
shared the said information with PS. Timarpur, whereupon ASI
Usman Ali along with Ct. Rahul reached at the spot. PW-1 further
avowed that he disclosed the whole incident to the IO, who
recorded the statement (Ex. PW2/A) of the complainant/PW-2.
Further, as per PW-2, he produced both the accused before the IO
and the IO searched the said car, where illicit liquor was found in
the dickey (said car’s boot). PW-2 further proclaimed that
thereafter, they counted the bottles of illicit liquor. Pertinently,
PW-2 correctly identified the appellants as the accused persons,
before the Ld. Trial Court. Correspondingly, PW-2 also identified
the case property, i.e., illicit liquor from its photographs (Ex. P1
(colly)) and the Honda City car, asserted to be used by appellants
from its photograph (Ex. P2), during the course of his deposition
before the Ld. Trial Court. Significantly, upon being cross
examined, by/on behalf of the appellants, PW-2 asserted as under;
“XXXXXX by ***, Id. Counsel for accused.
On that day I was on beat duty/foot patrolling duty
and my duty was from 10:00 AM to 12 midnight. On
that day I was carrying pistol with me. I carry my
service revolver on daily basis. Beat No. 6 covers 2-3
kms of the area. On that day I departed from PS at
about 05:30 PM and reached at red light at about
08:00-08:15 PM. I signaled them from the side of the
road to stop the vehicle and he stopped the vehicle at
the distance of 4-5 meters. Accused persons did not
try to flee from the spot. Jitender was sitting on the
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ABHISHEK GOYAL
Date:
GOYAL 2025.08.18
15:35:12
+0530
drive seat. Firstly, I had asked the Jitender that what
he is carrying in the vehicle. I do not ask such question
to everyone to whom I stop for checking. I had asked
generally to the accused that what he was carrying in
his vehicle. I did not notice anything in the offending
vehicle which is against the law. After asking this
question from the accused, I myself opened the door
of the vehicle and sat beside the accused persons as I
had got suspicion. I had found illicit liquor under both
seats of front side. I do not remember that how many
petties of illicit liquor noticed under the seat. I do not
remember the colour and size of the petties containing
illicit liquor. Today I refreshed my memory from the
police file…”
(Emphasis supplied)
14. Germane for the present discourse to refer to the
deposition of PW-3/HC Ram Niwas, who proved the recording of
DD Entry 34A as well as the registration of FIR in the instant case.
In particular, PW-3 deposed that on 29.12.2014, he was posted as
Head Constable at PS. Timarpur and, was working as Duty Officer
from 04:00 p.m. to 12 midnight. On that day, as per PW-3, at about
08:36 p.m., a call was received by him/PW-3 regarding
apprehension of accused along with illicit liquor in Honda City
car, bearing registration no. DL-6CJ-2999 at Gopal Pur Red Light.
Further, as per PW-3, he reduced the said information in writing
vide DD No. 34A (copy proved as Ex. PW3/A), which was marked
to ASI Usman Ali. PW-3 further deposed that ASI Usman Ali went
to the place of incident along with Ct. Rahul. Correspondingly, as
per PW-3, on the same night, at around 10:45 p.m., he received
rukka from Ct. Rahul, sent by ASI Usman Ali and on the basis of
the same, he/PW-3 registered the instant FIR. PW-3 further
produced, the original FIR before the Ld. Trial Court, copy of
which is Ex. PW3/B. As per PW-3, he also made an endorsement
on the rukka, which is Ex. PW3/C, bearing PW-3’s signature at
point A. PW-3 further avowed that he issued certificate under
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.18
15:35:16 +0530
section 65B of the Indian Evidence Act, 1872 (hereinafter referred
to as the ‘Evidence Act‘), with respect of the said computerized
FIR, which is Ex. PW3/D, bearing PW-3’s signature at point A.
Correspondingly, PW-3 proclaimed that the copy of FIR and
original rukka were given to Ct. Rahul to further hand over the
same to ASI Usman Ali for further investigation. Notably, PW-3
was not cross examined by/on behalf of the appellants, despite
being afforded opportunity.
15. Significantly, PW-4/Jasvinder Singh deposed that
his uncle/Late Sh. Maan Singh was the registered owner of
vehicle, i.e., Honda City. PW-4 affirmed that his said uncle had left
for heavenly abode and he/PW-4 proved the death certificate of
Late Sh. Maan Singh as Ex. PW4/A. PW-4 further proved the said
Honda City car from its photograph(s), i.e., Ex. P2, as belonging to
Late Sh. Maan Singh. Relevantly, upon being cross-examined,
PW-4, proclaimed, as under;
“XXXXXX by ***, Id. Counsel for accused.
Photographs Ex. P2 is similar to the vehicle which
my uncle Maan Singh was using but I cannot say
whether it is the same vehicle or not as vehicle do not
bear any registration number. I do not know to whom
my uncle had sold the vehicle shown in the
photograph. I do not have personal knowledge of this
case”
(Emphasis supplied)
16. Correspondingly, reference is made to the deposition
of PW-5/SI (Retd.) Usman Ali, who asserted in his testimony that
on 29.12.2014, he was posted as Sub-Inspector at PS. Timarpur.
Further, as per PW-5, on the said day, at around 08:45 p.m., he
received information vide DD No.34A regarding apprehension of
two persons with illicit liquor in one vehicle at Gopalpur red light
by Ct. Khushal. Thereafter, as per PW-5, he along with Ct. Rahul
reached at the said spot, where one car of Honda City make,
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.08.18
15:35:20 +0530
bearing registration no. DL-6CJ-2999 was found and Ct. Khushal
produced two persons before him/PW-5. On interrogation, as per
PW-5, the said persons revealed their names as Sanjay and
Jitender, the appellants herein, who were correctly identified by
PW-5 before the Ld. Trial Court. Further, as per PW-5, he
searched the said car, where they found 41 (forty one)
pettis/cartons of desi sharab; 05 (five) pettis of half bottles of
‘raseela masaledar desi sharab’ make; and 09 (nine) pettis of half
bottles of ‘nimbu masaledar desi sharab’ make; and 24 (twenty
four) pettis of ‘masaledar’ liquor in quarter bottles.
Correspondingly, as per PW-5, 72 (seventy two) quarter bottles
(24 x 3) were found loose in the offending car. Thereafter, as per
PW-5, he counted the bottles in each pettis and took one sample
bottles from each of the said pettis. Concomitantly, PW-5 deposed
that the case property was sealed with the seal of ‘UA’ and the
sample bottles were also wrapped in white cloth and sealed with
the seal of ‘UA’. Thereafter, as per PW-5, he seized the case
property vide seizure memo Ex. PW1/B, bearing PW-5’s
signatures at point B. As per PW-5, he subsequently, recorded the
statement of Ct. Kushal and prepared rukka (Ex. PW5/A), bearing
PW-5’s signatures at point A. PW-5 further deposed that he
handed over the said rukka to Ct. Rahul for registration of FIR and
Ct. Rahul took the same to PS. In the meantime, as per PW-5, he
prepared the site plan (Ex. PW5/B) at the instance of Ct. Kushal. It
was further proclaimed by PW-5 that after some time, Ct. Rahul
returned to the spot along with a copy of FIR and original rukka,
which was handed over to him/PW-5. Thereafter, as per PW-5, he
seized the car vide seizure memo (Ex. PW1/A) and made enquiries
from both the appellants as well as arrested them and conducted
their personal search vide memos, i.e., Ex. PW1/C, Ex. PW1/D,
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Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.08.18
15:35:24 +0530
Ex. PW1/E and Ex. PW1/F, all bearing PW-5’s signatures at point
B. PW-5 further avowed that he also recorded the disclosure
statements of both the appellants as Ex. PW5/C and Ex. PW5/D,
both, bearing PW-5’s signatures at point A. As per PW-5, he also
seized the documents, i.e., registration certificate and insurance,
pertaining to the offending vehicle bearing registration no.
DL-6CJ-2999 vide seizure memos Ex. PW5/E and Ex. PW5/F,
both bearing PW-5’s signatures at point A. PW-5 further asserted
that he also seized the driving licenses of both the appellants vide
seizure memos Ex. PW5/G and Ex. PW5/H, both bearing PW-5’s
signatures at point A; and also seized delivery receipt of offending
car vide seizure memo Ex. PW5/I, bearing PW-5’s signatures at
point A. Thereafter, as per PW-5, he deposited the case property in
malkhana and produced both the appellants before the concerned
court on the following day. PW-5 further asserted that he along
with Ct. Rahul and other police officials went to Gadhi Village in
search of Subhash, however, he was found to be not traceable,
whereupon, intimation was given to the local police. It was further
avowed by PW-5 that proceedings under Section 82 Cr.P.C. were
initiated against Subhash and later on he was declared proclaimed
offender. PW-5 asserted that he conveyed the information to
Excise Department, regarding the offending vehicle and the illicit
liquor. Concomitantly, as per PW-5, the sample were taken by Ct.
Jaswant to the Excise Lab, ITO, Delhi and later on, he/PW-5,
received the result (Ex. AD1) from the Excise Lab. Appositely,
PW-5 further asserted that after completion of all the formalities
and recording of statements of the witnesses, he prepared the
chargesheet and filed the same before the concerned court. PW-5
further identified the case property, i.e., seized liqour bottles from
their photographs (Ex. P1 (Colly.)), as the same had already been
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Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.08.18
15:35:29 +0530
destructed by the order dated 11.05.2018 of Deputy
Commissioner/Assistant Commissioner (Excise), New Delhi.
Further, PW-5 also proved the offending vehicle, i.e., Honda car
from its photograph (Ex. P2).
17. Remarkably, under his cross-examination, by/on
behalf of the appellants, PW-5 declared, as under;
“XXXXXX by ***, Ld. Counsel for accused
Sanjay and Jitender.
Duty Officer informed me about the present
incident at about 8:35 pm, whose name I do not
remember. I do not recall the full name of the then
SHO, PS Timar Pur, but his surname was Thakur. I
reached at the spot on my own private motorcycle
bearing registration no. DL6SAL7546.
*** *** ***
I did not obtain any prior permission from my
senior officer regarding the use of my private
motorcycle. I reached at the spot at about 8:40PM. I
met with Ct. Kushal and both accused persons. The
distance between the spot and PS is about 800 metres.
Public persons were available at the spot. Except Ct.
Kushal, I did not confirm from any other witness
regarding the apprehension of any other persons who
were available at the spot. I prepared arrest memos of
both accused persons at about 11PM and obtained
signatures of both the accused persons and Ct. Rahul
on the above said memos. Information regarding the
arrest of both accused persons was conveyed to their
respective families. I do not remember the name to
whom the information regarding arrest of accused
persons was conveyed but the same was mentioned in
respective arrest memos. I am not able to recall today
as to how much amount was recovered in personal
search of both accused persons and the make of the
mobile phone. I reached at the PS at 12 midnight but I
do not remember the DD number through which I
made arrival entry. I could not serve any notice to the
public persons who refused to join the investigation
team. I produced both the accused persons before the
Duty MM concerned on that day. I do not remember
the DD entry when we made arrival in PS along with
accused after obtaining PC remand. Accused persons
were taken to the Gadhi Village for the search of their
co-associate namely Subhash but I do not remember
the departure DD number and arrival DD number. 1
do not remember the exact address of co-accused
Subhash. I do not remember the name the police
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.18
15:35:33 +0530
officer of the local PS to whom I intimated. I went to
the spot along with IO kit. I prepared all the
documents at the spot. I sealed the case property at the
spot. I did not make any particular DD entry regarding
the seizure of the case property.
At this stage, attention of the witness is drawn
towards the photograph of the offending vehicle
which is already Ex. P2 and has been asked whether
the said vehicle bears number plate or not. After
seeing the same, witness stated that there is no number
plate.
I recorded the disclosure statement in presence of
the staff. There were total 42 samples and the same
were sent to Excise Lab on 26.02.2015. I deposited the
case property into the malkhana however, I do not
remember the serial number through which I
deposited it. Medical examination of both the accused
persons was conducted after their arrest and before
reaching the PS. I do not remember how much time it
took to conduct the medical examination of both
accused persons. There were no CCTV cameras
available at the spot.
It is wrong to suggest that I prepared site plan on
my own. It is further wrong to suggest that I did not
investigate the present matter. It is wrong to suggest
that I never arrested the accused persons. It is wrong to
suggest that due to altercation with the police officials
at red light, the accused persons have been implicated
falsely in the present case. It is wrong to suggest that I
am deposing falsely…”
(Emphasis supplied)
18. Apropos the present discourse to further make a
reference to the deposition of PW-6/HC Jaswant, who deposed
before the Ld. Trial Court that on 26.02.2015, he was posted as
Constable at PS. Timarpur and on the said day, he received the
sample of the present matter from the MHC(M) through RC
number 2621/15 along with one application regarding the seizure
of car bearing registration no. DL-6CJ-2999. As per PW-6, he
deposited the same into the Excise Lab, ITO in sealed condition.
Further, as per PW-6, as long as the samples remained in
his/PW-6’s possession, the same were intact and not tampered
with. Relevantly, PW-6 proved the road certificate as Ex. PW6/A
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 26 of 40
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ABHISHEK GOYAL
GOYAL Date:
2025.08.18
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+0530
qua such conveyance, bearing PW-6’s signatures at point A.
Apposite to note that PW-6 was not cross examined by/on behalf
of the appellants, despite being afforded opportunity.
19. Conspicuously, in light of the foregoing facts and
circumstances, this Court would now proceed with the evaluation
of the material placed on record, in light of the arguments
addressed by/on behalf of the appellants and the State. In
particular, this Court would proceed to determine as to whether
from the facts and circumstances brought forth, appellants
complicity, involvement and participation in the commission of
offence under Section 33 of the DE Act read with Section 34 IPC,
stands proved beyond reasonable doubt, in the instant case.
Apposite, in this regard to outrightly note that the Ld. Trial Court,
while reaching the conclusion of the guilt of the appellants has
primarily relied on the testimonies of the aforesaid police
officials/witnesses, i.e., PW-1, PW-2 and PW-5 in light of the
settled judicial precedent(s)4 that the absence of public witnesses is
neither detrimental nor can be sole reason to throw out or doubt the
prosecution’s case. However, while doing so the Ld. Trial Court
failed to consider the inherent grave omissions and lapses in the
testimonies of the said witnesses and the material brought forth on
record of the Ld. Trial Court. In particular, the Ld. Trial Court
failed to appreciate that nowhere under the deposition of any of the
prosecution witnesses, it is decipherable as to whether the seal,
deployed in seizing the case property was handed over to any
independent person/witness, after its use. Strikingly, even the
IO/PW-5 did not assert anything under his deposition regarding
the handing over of the seal to any independent witness(es) in the
4
Appabhai v. State of Gujarat, 1988 Supp SCC 241.
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ABHISHEK GOYAL
GOYAL Date:
2025.08.18
15:35:43
+0530
instant case. Needless to mention that even no seal handing over
memo has either been placed on record of the Ld. Trial Court or
even proved by any witness/independent witness in the instant
case. In fact, there is nothing on record to indicate in the slightest,
any attempt made by any of the prosecution witnesses to hand over
the seal to any independent witness. Concomitantly, there is
nothing on record to show as to when the seal in question was
finally taken back from PW-1, PW-2 or PW-5 or if it remained
with them forever. Clearly, the seal during the entire interval
reasonably appears to be within the reach of the said police
officials and the members of the raiding team, not ruling out a
possibility of tampering with the case property under such
circumstances. Needless to mention that the same is despite the
fact that the superior courts have persistently ruled in favour of
proving seal handing over memo in akin cases, to rule out any foul
play. Reference in this regard is made to the decision of the
Hon’ble High Court of Delhi in Safiullah v. State (Delhi Admn.),
1992 SCC OnLine Del 516, wherein the Hon’ble Court, whilst
being confronted with an akin situation, remarked, as under;
“9. …The seal after use were kept by the police
officials themselves therefore the possibility of
tempering 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 tempered with. The
prosecution could have proved from the CFSL form
itself and from the road certificate as to what articles
were taken from the Malkahana. Once a doubt is
created in the preservation of the sample the benefit of
the same should go to the accused…
*** *** ***
11. It is nowhere the case of the prosecution that
the seal after use was handed over to the independent
witness P.W.5. Even the I.O. P.W.7 does not utter a
word regarding the handing over of the seal after use.
Therefore, the conclusion which can be arrived at is
that the seal remained with the Investigating Officer
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 28 of 40Digitally signed
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ABHISHEK GOYAL
Date:
GOYAL 2025.08.18
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or with the other member of the raiding party
therefore the possibility of interference or tempering
of the seal and the contents of the parcel cannot be
ruled out. Since the Inspector Omveer Singh,
appearing as P.W.-8, has tried to improve his
statement in the Court, to my mind, no reliance can be
placed on his statement, particularly when the
Investigating Officer and the Moharrar Malkhana do
not say anything about the deposit of the CFSL form
with the Moharrar Malkhana. In these circumstances I
am clearly of the view that the prosecution has failed
to prove this link evidence to show that the sample
parcel was not tampered with the anyone before it was
examined by the C.F.S.L. and the benefit of the same
must go to the appellant.”
(Emphasis supplied)
20. The gravity of the aforesaid circumstances is
accentuated by the fact that from a conscientious perusal of the
Report of Excise Control Laboratory dated 17.03.2015 (Ex. AD1,
duly admitted by the appellants under Section 294 Cr.P.C., without
admitting the allegations of prosecution), it is observed that the
samples seized by the IO are asserted to be forwarded to the said
lab on 26.02.2015, despite the same being asserted to be seized as
early as on 29.12.2014 (Ex. PW1/B). In this regard, reference is
made to the hearing of the said report, which explicitly records that
the same pertains to, “…sample(s) of forty two (42 sealed
samples) along with duly filled form M-29, in connection with the
FIR No. 887/14 dated 29.12.2014 under IPC sec. 33 Delhi Excise
Act, 2009 stated by you have been dispatched on 26.02.2015 per
messenger and duly received in this office on 26.02.2015…”.
Notably, the dispatch and conveyance of said samples from the
malkhana to the Excise Control Laboratory on 26.02.2015 is
further proved under the deposition of PW-6/HC Jaswant, who
inter alia deposed that on 26.02.2015, while he was posted as
Constable at PS. Timarpur, he received sample of the present
matter from the MHC(M) through RC number 2621/15 along with
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 29 of 40
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.18
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one application regarding the seizure of car bearing registration no.
DL-6CJ-2999 and, deposited the same into the Excise Lab, ITO in
sealed condition. Accordingly, under such circumstances, the
delay in sending the samples for scrutiny from their seizure on
29.12.2014 till their final dispatch for analysis on 26.02.2015 is not
forthcoming/explainable from the material placed on record. Quite
evidently, all this while, the sample property was admittedly stated
to be at the malkhana, where a possibility of tampering cannot be
ruled out. In fact, in this regard, the Hon’ble High Court of Delhi in
Rishi Dev v. State (Delhi Admn.), 2008 SCC OnLine Del 1800 ,
explicitly observed as under;
“20. This Court is unable to agree with the
approach adopted by the trial court, especially its
observations highlighted above. The record of the
case should contain entry in writing about the sample
being sent for testing within the time specified by the
Narcotic Control Bureau. A strict compliance of this
requirement has to be insisted upon. The reason is
this. The sample that is kept in a police malkhana,
under the seals of the police officers themselves, is
still definitely under the control of those police
officers. There is every possibility that the samples
could be tampered and again re-sealed by the very
same officers by again affixing their seals. It is to
prevent this from happening that earlier the sample is
sent for testing to the CFSL the better.
21. The delay in sending samples to the CFSL has
to be properly explained by the prosecution and
further, such explanation can be accepted only where
the prosecution shows that it made a genuine attempt
to send the sample to the CFSL forthwith and that
because of the excessive workload of the CFSL, the
sample was returned and was unable to be tested. The
record must show that such an attempt was made and
the sample was returned for reasons not of the making
of the prosecution. The lacuna in this regard cannot be
permitted to be made up by oral evidence…”
(Emphasis supplied)
21. Unmistakably, in light of the foregoing, in particular,
from the factum of non-production/proof of handing over of the
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GOYAL
GOYAL Date: 2025.08.18
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seal to any independent witness as well as of delay in conveyance
of the sample property from the malkhana to the Excise Control
Laboratory, this Court is of the considered opinion that a
possibility of tampering with the case property cannot be ruled out
in the instant case. Needless to further mention in this regard, that
the situation becomes even more troublesome in the instant case as
the prosecution did not endeavor to prove the submission, safe
custody and deposit-removal of the case property as well as sample
property in the present case by adducing the concerned MHC(M)
as one of the prosecution witnesses. Correspondingly, even the
entry by which the case property was deposited in malkhana is not
forthcoming on record. Pertinent, in this regard to note that though,
PW-5 asserted during his cross-examination that he had deposited
the case property in the malkhana, however, PW-5 expressed
inability to recollect the serial number via/against which the said
case property was deposited. Ergo, under such circumstances, this
Court finds itself difficult to concede with the finding of the Ld.
Trial Court that the testimony of PW-6/HC Jaswant is sufficient to
prove safe custody of the case property/sample property and same
being not tampered with. The reasons for same are quite
comprehensible as it is not the case of the prosecution that PW-6
was the custodian of the case property/sample property, during the
entire interregnum period from its seizure on 26.12.2014 till its
conveyance to the Excise Control Laboratory on 26.02.2015 by
him/PW-6. Inevitably, in the considered opinion of this Court,
PW-6 is not competent to either prove the factum of safe custody
of the case property/sample property or that of the same being not
tampered with, whilst lying at the malkhana.
22. Correspondingly, this Court is in concurrence with
the submissions of the Ld. Counsel for the appellants that there are
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ABHISHEK GOYAL
GOYAL Date:
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serious, material and significant lacunae in the prosecution case,
determinable from the conscientious scrutiny of the testimonies of
various prosecution witnesses. In particular, concedes with the
submissions of Ld. Counsel for the appellants that the prosecution
has not been able to prove the exact number of cartons/pettis,
allegedly recovered from the possession of the appellants in the
instant case. In this regard, it is pertinent to note that PW-1 asserted
under his cross-examination by/on behalf of the appellants that 41
(forty one) pettis/cartons of illicit liquor were recovered from the
vehicle in question. However, under his examination-in-chief,
PW-1 avowed that from the said vehicle/offending vehicle, 24
(twenty four) pettis (cartons) of masaledar liquor in quarter bottles;
05 (five) other pettis (cartons) of different make; and 09 (nine)
other petties (cartons) of quarter bottles were also found lying in
dickey/offending vehicle’s boot, besides, in the car’s boot, 72
(seventy two) quarter bottles were found kept in one katta/gunny
bag. Appositely, PW-5 deposed on the same lines that 41 (forty
one) pettis/cartons of illicit liquor were seized from the offending
vehicle and from each of the seized pettis, one sample bottle was
seized. Quite surprisingly, from a scrupulous analysis of the
material placed on record, it is seen that 42 (forty two) samples,
stated to be retrieved from one petti each, were sent for
forensic/chemical analysis with the Excise Control Laboratory.
Ergo, under such circumstances, the disconcert between the
numbers of seized samples and pettis/cartons, allegedly recovered
from the offending vehicle, i.e., asserted to be 41 (forty one), is not
explicable from the material placed on record. Correspondingly,
once it is the prosecution’s own case that 24 (twenty four) pettis
(cartons) of masaledar liquor in quarter bottles; 05 (five) other
pettis (cartons) of different make; and 09 (nine) other petties
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 32 of 40
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GOYAL Date: 2025.08.18
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(cartons) of quarter bottles were also found lying in dickey
(cumulatively making 38 pettis/cartons) and other 72 (seventy
two) quarter bottles were found kept in one katta/gunny bag, the
seizure of 41 (forty one) pettis/cartons is not understandable in the
instant case. Needless to mention, quite ominously, nowhere under
his deposition, the complainant/PW-2 avowed regarding the
seizure of the illicit liquor or vehicle in question or of the
arrest/search and seizure proceedings of the appellants.
23. Disconsolately, another noteworthy discrepancy
observable from the material placed on record pertains to
incongruity in the testimonies of PW-1 and PW-5 as to the exact
time/moment when the seizure memo was prepared by the
IO/PW-5 in the instant case. In this regard, it is pertinent to note
that PW-1 deposed under his examination-in-chief that it was only
upon his return to the spot that the IO counted the quarter bottles in
each pettis and took one sample bottles from each of the pettis.
Correspondingly, as per PW-1, the case property was sealed with
the seal of ‘UA’ and the sample bottles were also sealed with the
seal of ‘UA’, after wrapping them in white cloth, only then. In fact,
under his cross examination, PW-1 reiterated that the IO had
prepared the documents, after the registration of FIR. However, as
forestated, the said assertion of PW-1 is not only contradictory to
the version of the incident put forth by PW-5/ASI Usman Ali
under his deposition before the Ld. Trial Court, rather, also does
not coincide with the contents of the rukka (Ex. PW5/A), wherein
the factum of such seal and seizure, prior to dispatch of the
tehrir/rukka to the police station for registration of FIR has already
been mentioned. Needless to mention even the FIR (Ex. PW3/B)
records that such search and seizure proceedings were conducted
prior in time to PW-1’s return to the spot with a copy of the said
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FIR, belying the version put forth by the said witness/PW-1. Ergo,
under such circumstances, the situation becomes even more bleak
as the prosecution has failed to explain as to how the FIR number
came to be mentioned/specified under the seizure memo (Ex.
PW1/B) and Form No. M-29, both of which documents are stated
by PW-5/IO to have come into existence, prior to the registration
of the FIR. However, surprisingly, from an inspection of the said
documents, it is noted the particulars of FIR had already specified
thereupon and that too in running hand with same pen, which fact
has remained unexplained on behalf of the prosecution. In fact, it is
reiterated that no explanation is forthcoming from the prosecution
as to how the FIR number surfaced on a document which was
prepared prior to the registration of the FIR, casting a shadow of
doubt on the prosecution’s case. In this regard, reference is made
to the decision of the Hon’ble High Court of Delhi in Pawan
Kumar v. Delhi Administration, 1987 SCC OnLine Del 290 ,
wherein the Hon’ble Court inter alia noted in a similar situation, as
under;
“…Thereafter, the sketch plan of the knife was
prepared in the presence of the witnesses. After that,
the ruqa Ex. PW11/F was sent to the Police Station for
the registration of the case on the basis of which the
FIR, PW11/G was recorded. The F.I.R. is numbered
as 36, a copy of which was sent to the I.O. after its
registration. It comes to that the number of F.I.R. 36
came to the knowledge of the I.O. after a copy of it
was delivered to him at the spot by a constable. In the
normal circumstances, the F.I.R. No. should not find
mention in the recovery memo or the sketch plan
which had come into existence before the registration
of the case. However, from the perusal of the recovery
memo, I find that the FIR is mentioned whereas the
sketch plan does not show the number of the FIR. It is
not explained as to how and under what circumstances
the recovery memo came to bear the F.I.R. No. which
had already come into existence before the
registration of the case. These are few of the
circumstances which create a doubt, in my mind,
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ABHISHEK GOYAL
GOYAL Date: 2025.08.18
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about the genuineness of the weapon of offence
alleged to have been recovered from the accused.”
(Emphasis supplied)
24. Relevantly, from a meticulous analysis of the
material placed on record, this Court further finds credence in the
argument of the Ld. Counsel for the appellants that even the place
of seizure from the offending vehicle in the instant case, is not
beyond a pale of doubt in the instant case. In this regard, this Court
deems it pertinent to note that though, PW-1 affirmed under in his
cross examination that no other illicit liquor was found from any
other part of the vehicle, except the car’s dickey, however, the said
version of PW-1 contradicts the assertion of PW-2/Ct. Khushal
under his cross examination. Appositely, PW-2 asserted under his
cross examination that he found illicit liquor under both seats of
front side in the vehicle in question/offending vehicle. However,
even then, PW-2 asserted that he could not recollect as to how
many pettis (cartons) of illicit liquor were noticed under the seat or
as to what was the color and size of the pettis/cartons, allegedly
containing illicit liquor. Needless to further mention that PW-2
contradicted his own version under his examination in chief and
cross examination, in so far as PW-2 proclaimed that the illicit
liquor was seized from the dickey of the vehicle in question. In
fact, the manner in which the appellants are asserted to be
apprehended, searched and demonstrated to be in possession if
illicit liquor, in the considered opinion of this Court, not beyond
shadow of doubt, considering that though, PW-2 asserted that he
had noticed, nothing in the offending vehicle, which was against
the law. However, PW-2 proclaimed that after he sat beside the
appellants, he got suspicions. Despite the same, the reason for such
suspicion is not forthcoming under deposition of PW-2. Needless
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ABHISHEK GOYAL
Date:
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to mention that even the identification of vehicle in question is not
beyond a shadow of doubt. In this regard, it is pertinent to note
that, though, the prosecution witnesses identified the offending
vehicle from its photograph Ex. P2, however, it is admitted case of
the prosecution that the said photographs does not demonstrate the
presence of any registration number on the vehicle seen/noted
therein. In fact, PW-5 affirmed during his cross examination that
the photograph Ex. P2 does not depict the presence of number
plate on the vehicle, unmistakably, casting a sizeable dent in the
version of prosecution witnesses.
25. Ergo, in light of the foregoing discrepancies,
lacunae, and omissions on the part of the prosecution witnesses, in
order to successful bring home guilt of the appellants in the instant
case, it was incumbent on the prosecution to prove the recovery of
the alleged illicit liquor from the appellants by means of the
testimony of independent witnesses in the present case. However,
the prosecution not miserably failed to adduce any independent
witness, rather, even genuine endeavor on the part of the
investigating authorities/police officials to join any independent
witnesses in the recovery process appear to be grossly wanting.
The same is despite the fact that it is not the prosecution’s case that
no public witnesses were present on the spot. On the contrary,
PW-5 affirmed under his cross examination that public persons
were present on the spot, however, as per PW-5, except Ct. Kushal,
he did not confirm from any other witness regarding the
apprehension of appellants. PW-5 further deposed under his cross-
examination that he could not serve any notice to the public
persons, who refused to join the investigation team. Obviously, the
aforesaid circumstances demonstrate the absence of earnest
attempts on the part of prosecution/investigating officer(s) to take
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ABHISHEK GOYAL
Date:
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necessary steps at their end to fairly conduct the investigation in
the instant case. Quite lucidly, such omissions on the part of the
prosecution, when seen in conjunction with the aforenoted grave
inadvertences, create reasonable doubt on the recovery of alleged
illicit liquor from the appellants herein. Relevant in this regard to
make a reference to the decision of the Hon’ble High Court in
Anoop Singh v. State, 1992 SCC OnLine Del 218, wherein the
Hon’ble Court in an akin situation, observed as under;
“Apart from this material discrepancy, there is also
discrepancy regarding the alleged efforts made by the
police for joining the independent public witnesses.
R.K. Chadha had been brought by the police from the
police station while coming to the spot and it is stated
by all the witnesses except the I.O. that only some of
the passers by were requested to join the raiding party
and they declined expressing their own difficulties
and had gone away, whereas the I.O. came up with the
story that even the shop-keepers, whose shops were
open at the time of occurence, had been requested to
join but they had declined The other witnesses have
categorically stated that no shop-keeer was asked to
join the raided party.
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 shop-keepers had declined to join
the raiding party, the police could have later on taken
legal action against such shop-keepers 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 I.P.C…”
(Emphasis supplied)
26. Correspondingly, in light of the foregoing, it is
germane at this stage to deal with the contention of the Ld. Addl.
PP for the State pertaining to the applicability of the provisions
under Section 52 of the Delhi Excise Act in this case. In order to
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appreciate the same, it would be apposite to reproduce the said
provision as under;
“52. 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, 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.”
(Emphasis supplied)
27. Quite intelligibility, for the presumption under
Section 52(1) of the DE Act to be raised, it is obligatory for the
prosecution to first establish the recovery of the articles envisaged
under the said provision 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. However, in the instant case, for the reasons
hereinunder observed, this Court cannot unambiguously reach a
conclusion regarding the proof of possession of alleged illicit
liquor from the appellants so as to raise the presumption under
Section 52 of the Delhi Excise Act.
28. Comprehensibly, in light of the facts and
circumstances noted hereinabove, in the considered opinion of this
Court, the prosecution has not been able to unwaveringly and
‘beyond reasonable doubt’, bring home the charges against the
appellants herein. Further, considering the gross lacunae and
omissions in the case of the prosecution, as noted hereinunder, this
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ABHISHEK GOYAL
GOYAL Date:
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+0530
Court cannot, irrefutably reach a conclusion of guilt of the
appellants herein. Even otherwise, it is noted herein that it is a
settled law5 that in case where two views are possible, the one in
favour of the accused and the other adversely against it, the view
favoring the accused must be accepted.
29. Conclusively, in view of the above discussion, the
present appeal deserves to be allowed and is hereby allowed. As
such, in light of the foregoing, this Court reiterates that from the
facts and circumstances placed on record, the appellants cannot be
determined to be guilty ‘beyond reasonable doubt’ of any offence
as charged and convicted/sentenced with by the Ld. Trial Court.
Consequently, the judgment dated 19.01.2023 and order of
sentence dated 09.02.2023, passed by Ld. MM-02, Central, Tis
Hazari Courts, Delhi in case bearing; ‘State v. Jitender Antil, Etc.,
Cr. Case No. 296641/2016’, arising out of FIR No. 887/2014, PS.
Timarpur, convicting and sentencing the appellants, respectively,
for the offence under Section 33 of the Delhi Excise Act read with
Section 34 IPC are hereby set aside. The appellants are hereby
admitted to bail on them, each furnishing of a personal bond in the
sum of Rs. 20,000/- (Rupees Twenty Thousand only) along with
one surety of the like amount (each), as required under section
437A Cr.P.C./Section 481 of Bharatiya Nagarik Suraksha Sanhita,
2023 (‘BNSS’ for short). Further, as requested, the bail bond be
furnished by the appellants, within a period of one week from the
date of this judgment.
30. Trial Court Record be sent back along with a copy of
this judgment/order.
31. Appeal file be consigned to record room after due
5
Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC
605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 39 of 40 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.18 15:36:34 +0530
compliance. Copy of this judgment is given dasti to the appellants
against acknowledgment.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.18
15:36:41
+0530
Announced in the open Court (Abhishek Goyal)
on 18.08.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
CA No.: 54/2023 Jitender Antil & Anr. v. State (NCT of Delhi) Page 40 of 40
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