Delhi District Court
State vs Raja on 21 January, 2025
IN THE COURT OF MS. RUBY NEERAJ KUMAR, CJM,
NORTH, ROHINI COURT, DELHI
State v. Raja
FIR No. 588/2017
u/s 33 Delhi Excise Act
PS: Alipur
JUDGMENT
Serial No. of the case 5674/2018
Date of commission of offence 11.12.2017
Date of institution of case 18.10.2018
Name of the complainant Constable Jagdish
Name of Accused, parentage & Raja
Address S/o Shyam Lal
R/o A-280, Ganga ram Colony,
Tikri Khurd, Delhi.
Offence complained Section 33 of Delhi Excise Act, 2009 Plea of Accused Pleaded not guilty Date of Arguments 18.01.2025 Final Order Acquitted Date of Judgment 21.01.2025 BRIEF FACTS
1. Concise facts of the case as alleged by the
prosecution are that on 11.12.2017 at about 03:20 pm behind
CNG Pump, Ganga Ram Colony, Tikri Khurd, Delhi within the
jurisdiction of PS-Alipur, PW-1 Constable Jagdish, while being
on patrolling duty, apprehended accused Raja. The prosecution
has alleged that the accused was found in possession of one Digitally
signed by
RUBY RUBY NEERAJ
KUMAR
NEERAJ Date:
FIR No. 588/2017 State v. Raja PS: Alipur Page 1 of 14 KUMAR 2025.01.21
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+0530
plastic katta (white colour) containing 100 quarter bottles of
illicit liquor bearing label “Asli Santara Masaledar Desi Sharab
for Sale in Haryana Only 180 ml” without any license or permit.
On receiving information regarding the same, PW-4 HC Sandeep
& PW-5 IO/ASI Ramesh Kumar reached at the spot and therein
PW-5/ IO took out five sample bottles from the katta, converted
them into a separate pullanda & sealed the sample bottles as well
as the katta containing the remaining bottles with the seal of ‘RK’.
The recovered case property alongwith samples was seized by
PW-5/IO vide seizure memo Ex.PW-1/B and Form M-29 was
also filled. Thereafter, PW-5/ IO recorded the statement of PW-
1, which is Ex.PW-1/A, prepared rukka on the basis of the same,
which is Ex. PW-5/A and handed it over the same to PW-4 for
registration of FIR. On the basis of the rukka, present case FIR
for offence under section 33 of Delhi Excise Act, 2009 was
registered against the accused by Duty Officer. Subsequently,
PW-5/ IO arrested accused vide arrest memo, which is Ex.PW-
1/D, conducted his personal search vide personal search memo,
which is Ex.PW-1/E, recorded his disclosure statement, which is
Ex.PW-1/F, prepared the site plan at instance of PW-1, which is
Ex.PW-1/C and conducted further investigation.
2. After completion of investigation, chargesheet was
filed in the court. Cognizance of the offence was taken and copy
of chargesheet was supplied to the accused in compliance of
Section 207 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘Cr.P.C‘) Digitally signed
RUBY by RUBY
NEERAJ KUMAR
NEERAJ Date:
KUMAR 2025.01.21
16:39:59 +0530
FIR No. 588/2017 State v. Raja PS: Alipur Page 2 of 14
3. Arguments on the charge were heard and vide order
dated 04.04.2019, charge for offence under section 33 of Delhi
Excise Act, 2009 was framed against the accused. The accusation
was read over and explained to the accused to which, he pleaded
not guilty and claimed trial.
EVIDENCE RECORDED DURING TRIAL
4. The prosecution has examined five witnesses to
establish and prove its case against the accused.
5. PW-1 Constable Jagdish is the Complainant as well
as the recovery & arrest witness. He had apprehended the
accused, on suspicion while, he was on patrolling duty
6. PW-2 Head Constable Hardeep is a formal witness.
He has deposed that on 20.12.2017, on the instructions of IO/ASI
Ramesh, he collected the sample bottles from the malkhana and
deposited the same at Excise Laboratory vide Road Certificate
269/21/2017.
7. PW-3 Head Constable Vinod is also a formal
witness. He being the maalkhana mohrar had produced the
Register no. 19 of the year 2017 wherein, entry is made vide
serial no. 731 regarding the deposition of the case property at the
maalkhana. Copy of same is Ex.PW-3/A. He also produced
Register no. 21 carrying Road Certificate bearing RC
no.269/21/17. Copy of the same is Ex.PW-3/C. Digitally
signed by
RUBY RUBY NEERAJ
KUMAR
NEERAJ Date:
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8. PW-4 Head Constable Sandeep is a recovery &
arrest witness. He had joined the investigation of the instant case
with the Investigating Officer ASI Ramesh.
9. PW-5 ASI Ramesh Kumar is the Investigating
Officer of the instant case.
10. It is pertinent to mention herein that vide separate
statement recorded on 25.08.2022, in accordance with the
provisions of Section 294 of Cr.P.C, accused admitted the
recording of present case FIR no.588/17, which is Ex. A-1,
endorsement made on the rukka, which is Ex. A-2, Certificate
under section 65-B of Indian Evidence Act, which is Ex. A-3,
DD No. 34-B dated 11.12.2017, which is Ex. A-4 & chemical
examination report no. SZD040426- SZD040430, dated
12.01.2018, which is Ex.A-5. In view of the admission made,
Duty Officer/HC Pramod and Brijender, Deputy Chemical
Examiner were dropped from the list of witnesses.
11. PE was closed on 07.01.2025. Statement of accused,
under section 313 r/w 281 Cr. P.C, was recorded on 15.01.2025.
All the incriminating evidence were put to the accused. Accused
stated that he is innocent and has been falsely implicated in this
case. He has further stated that the case property alleged to have
been recovered was planted on him & the police officials have
registered a false and fabricated case against him as nothing was
recovered from his possession. Accused submitted that he does
Digitally
signed by
FIR No. 588/2017 State v. Raja PS: Alipur Page 4 of 14 RUBY
RUBY
NEERAJ
NEERAJ KUMAR
Date:
KUMAR 2025.01.21
16:40:19
+0530
not want to lead evidence in his defence. Accordingly, matter was
fixed for final arguments.
12. I have heard the rival contentions of Ld. APP for the
State as well as Ld. Counsel for the accused and carefully
perused the entire material available on record.
ARGUMENTS ADDRESSED
13. Ld. APP for the State has argued that all the
prosecution witnesses have supported the case of the prosecution
and the prosecution has proved the factum of recovery of illicit
liquor from the possession of the accused beyond reasonable
doubt and therefore, the accused deserves to be convicted and
sentenced as per law. Further, it is submitted by Ld. APP for the
State that by virtue of Section 52, Delhi Excise Act, 2009, a
presumption arises against the accused that he has committed the
offence under section 33 of the said Act, as the accused has failed
to prove to the contrary and did not account satisfactorily for the
possession of the liquor.
14. On the contrary, Ld. Counsel for the accused has
argued that the accused has been falsely implicated in the present
case and the alleged recovery was planted on him. He has further
argued that in the absence of alleged recovery being supported by
the evidence of independent public witnesses, the prosecution has
failed to prove the recovery itself. He has further argued that the
seal after use was not handed over to an independent person and Digitally
signed by
RUBY
RUBY NEERAJ
FIR No. 588/2017 State v. Raja PS: Alipur Page 5 of 14 NEERAJ KUMAR
Date:
KUMAR 2025.01.21
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therefore, possibility of case property having been tampered with
cannot be ruled out. He has further argued that the prosecution
has further failed to prove the presence of PW-1 at the place of
recovery, which points towards the falsity of the prosecution’s
case and therefore, accused deserves to be acquitted in the
present case.
BRIEF REASONS FOR THE DECISIONS
15. The case of the prosecution is that on the fateful day
accused was found in possession of illicit liquor without any
permit or license. In order to bring home the guilt of the accused,
first of all the prosecution is required to prove the recovery of
illicit liquor from the possession of accused beyond reasonable
doubt. However, keeping in view the facts & circumstances of
the case in totality and the arguments addressed on behalf of both
the parties, this court is of the considered opinion that there is not
one but several anomalies in the case put forward by the
prosecution, which renders the alleged recovery of illicit liquor
from the possession of the accused highly skeptical and the same
are discussed henceforth.
16. Firstly, section 100(4) of the Cr.P.C categorically
enunciates that whenever any search is made, two or more
independent and respectable inhabitants of the locality in which
the place to be searched is situated or of any other locality if no
such inhabitant of the said locality is available shall be called
upon to attend and witness the search. Further, as per section 100 Digitally
signed by
RUBY RUBY NEERAJ
FIR No. 588/2017 State v. Raja PS: Alipur Page 6 of 14 KUMAR
NEERAJ Date:
KUMAR 2025.01.21
16:41:01
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(8) of the Cr.P.C, refusal to be a witness without any reasonable
cause can render such public person liable for criminal
prosecution. In the case at hand, it is amply clear from the
evidence and has also been argued by the Ld. counsel for accused
that there is no independent public witness of alleged recovery of
the illicit liquor from the possession of the accused to corroborate
and lend credibility to the prosecution version. As regards the
same, it is pertinent to note that PW-4 & PW-5/IO have deposed
that despite the place of recovery being a populated area,
PW-5/IO had not asked any resident or shopkeeper to join the
investigation. On the contrary, PW-1 has deposed that the
Investigating Officer had asked 4-5 public persons to join the
investigation but they had refused & left the spot. Evidently,
irrespective of the contradiction in deposition of the witnesses,
despite the place of recovery being a public place, none of the
public persons were joined in the investigation. Apparently, not
even slightest of effort was made by PW-5/IO to join the public
witness in the investigation, which renders recovery of the
alleged illicit liquor from the possession of the accused doubtful.
It is well settled principle of law that mere non-joining of the
public witness should not be a ground of acquittal but if the
prosecution has not joined the public witnesses when they can be
joined, it was incumbent upon the prosecution to at least put
forward plausible explanation for not doing so. A police official
conducting investigation of a crime is entitled to ask any public
person to join the investigation and on refusal by said public
person, the Investigating Officer has the power to take
appropriate action against him under the law. The failure to do so
Digitally signed
FIR No. 588/2017 State v. Raja PS: Alipur Page 7 of 14
RUBY by RUBY
NEERAJ KUMAR
NEERAJ Date:
KUMAR 2025.01.21
16:41:10 +0530
by PW-5/IO is suggestive of the fact that the case of the
prosecution is not worth credence.
17. In this regard reliance can be place upon the
judgment of the Hon’ble High Court of Delhi in case titled as
Anoop Joshi v. State, 1992 (2) C.C. Case 314(HC), wherein, it
has been held as under:
“It is repeatedly laid down by this court that in such
cases, it should be shown by the police that sincere
efforts have been made to join independent
witnesses. In the present case, it is evident that no
such sincere efforts have been made, particularly
when we find that shops were open and one or two
shopkeepers could have been persuaded to join the
raiding party to witness the recovery being made
from the appellant. In case any of the shopkeepers
had declined to join the raiding party, the police
could have later on taken legal action against such
shopkeepers 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.”
18. Further, in the case titled as Nanak Chand v. State of
Delhi, 1991 RLR 62 the Hon’ble High Court of Delhi observed as
under:
“(6)….the recovery was from a street with houses
on both sides and shops nearby and yet no witness
from the public has been produced. Not that in every
case the police officials are to be treated as
unworthy of reliance but their failure to join witness
from the public specially when they are available,
may, as in the present case creates doubt. They have
again, churned out a stereo typed version….”
19. Also, in case titled as Sahib Singh v. Sate of Punjab,
AIR 1997 SC 2417, the Hon’ble Apex Court held as under:-
Digitally signed
RUBY by RUBY
NEERAJ KUMAR
NEERAJ Date:
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“…. Before conducting a search the concerned
police officer is required to call upon some
independent and respectable people of the locality to
witness the search. In a given case it may so happen
that no such person is available or, even if available,
is not willing to be a party to such search. It may
also be that after joining the search, such persons
later on turn hostile. In any of these eventualities the
evidence of the police officers who conducted the
search cannot be disbelieved solely on the ground
that no independent and respectable witness was
examined to prove the search but if it is found as in
the present case that no attempt was even made by
the concerned police officer to join with him some
persons of the locality who were admittedly
available to witness the recovery, it would affect the
weight of evidence of the Police Officer, though not
its admissibility.”
20. Furthermore, in the case titled as Massa Singh v.
State of Punjab, 2000 (2) C.C. Cases HC 11, conviction was set
aside by the Hon’ble Punjab & Haryana High Court on the
ground that it was obligatory on the part of investigating officer
to take assistance of independent witnesses to lend authenticity to
the investigation conducted by him. It was observed as under :
“The recovery has been effected from a public place.
The Investigating Officer could have taken the
trouble to associate an independent witness to get
the attestation of such independent witness
regarding the authenticity of the investigation
conducted by him. This aspect of the case has not
been properly appreciated by the Court below.”
21. Secondly, whenever a police official leaves or
arrives at the police station, he is required to make a departure or
arrival entry in the Daily Diary Register as per Chapter 22 Rule
49, Punjab Police Rules, 1934. The said provision provides as
under: Digitally
signed by
RUBY RUBY NEERAJ
KUMAR
FIR No. 588/2017 State v. Raja PS: Alipur Page 9 of 14 NEERAJ Date:
KUMAR 2025.01.21
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“22.49 Matters to be entered in Register No. II The
following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from
a police station of all enrolled police officers of
whatever rank, whether posted at the police station or
elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or
prior to the departure of the officer concerned and shall
be attested by the latter personally by signature or
seal.”
22. In the instant case, as per the prosecution’s story,
PW-1 had apprehended the accused, while being on patrolling
duty. The presence of the said police witness at the spot has been
disputed by the Ld. Counsel for the accused. Thus, to prove the
presence of PW-1 at the spot, the prosecution should have proved
on record the departure entry of said police official. However, no
documentary or other evidence to show his presence at the date,
time and place of alleged recovery has either been placed or
proved on record. Consequently, the prosecution has failed to
discharge its obligation to prove the presence of said police
witness at the date, time and place of recovery as alleged. In this
regard, reference can be made to the judgment of the Hon’ble
High Court of Delhi in case titled as Rattan Lal v. State, 1987 (2)
Crimes 29 wherein, it has been observed that:
“if the investigating agency deliberately ignores to
comply with the provisions of the Act the courts
will have to approach their action with reservation.
The matter has to be viewed with suspicion if the
provisions of law are not strictly complied with and
the least that can be said is that it is so done with an
oblique motive. This failure to bring on record, the
DD entry creates a reasonable doubt in the
prosecution version and attributes oblique motive on
the part of the prosecution.”
Digitally signed
RUBY by RUBY
NEERAJ
NEERAJ KUMAR
Date:
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23. Thirdly, in such like cases, prosecution is required to
prove beyond all reasonable doubts that after seizure of the case
property, there was no occasion for it to be tampered with and the
seal remained intact till the time case property was produced in
the court. However, in the present case, as per the case of
prosecution itself and as admitted by PW-5/IO, seal after use was
handed over by PW-5/IO to PW-4 who, being a recovery witness
is an interested witness. Evidently, the seal after use & prior to
deposition of the case property at maalkhana was not handed
over to an independent person. Further, no seal handing over
memo has either been placed or proved on record. At this point,
it would be apropos to refer to the observation made by the
Hon’ble Delhi High Court in case titled as Safiullah v. State, 1993
(1) RCR (Criminal) 622, wherein, it has been observed as under:
“10. The seals after use were kept by the
police officials themselves. Therefore the
possibility of tampering with the contents of
the sealed parcel cannot be ruled out. It was
very essential for the prosecution to have
established from stage to stage the fact that
the sample was not tampered with. Once a
doubt is created in the preservation of the
sample the benefit of the same should go to
the accused.”
24. Also, in Ramji Singh v. State of Haryana, 2007 (3)
RCR (Criminal) 452, the Hon’ble Punjab & Haryana High Court
held that “7. The very purpose of giving seal to an independent
person is to avoid tampering of the case property.”
Digitally signed
RUBY by RUBY
NEERAJ KUMAR
NEERAJ Date:
KUMAR 2025.01.21
16:42:20 +0530
FIR No. 588/2017 State v. Raja PS: Alipur Page 11 of 14
25. Judging on the touchstone of above-noted
conspectus of facts & circumstances, this court has no
reservation to hold that the possibility of case property having
been tampered with, in the instant case, cannot be ruled out with
certainty.
26. Lastly, the prosecution has not produced before the
court the case property i.e. the illicit liquor alleged to have been
recovered from the possession of the accused. Rather, only a
photograph of one katta with one bottle of alleged illicit liquor
kept over it has been adduced in evidence. There is no
photograph of the contents of the katta. No seal is visible in the
photograph. Further, an order of destruction of the case property,
which is Ex. P-3 has been produced before the court. Had the
alleged illicit liquor was recovered from the possession of the
accused, atleast its proper photographs should have been placed
on record. The non-production of the same dents the case of the
prosecution beyond repair.
27. In light of the above discussed discrepancies, the
prosecution has miserably failed to prove the recovery of illicit
liquor itself from the possession of the accused beyond
reasonable doubt and thus, even the presumption against the
accused as enunciated under section 52 of Delhi Excise Act 2009,
in respect of commission of offence under section 33 (f) of Delhi
Excise Act, does not come to the aid of the prosecution.
Digitally
28. The three cardinal principles of Criminal
RUBY
signed by
RUBY NEERAJ
KUMAR
NEERAJ Date:
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Jurisprudence which a judge must adhere to while administering
justice in criminal cases are that, firstly, the accused must be
presumed to be innocent until she is proved to be guilty.
Secondly, the onus to prove its case beyond all reasonable doubts
lies affirmatively on the prosecution & the benefit of doubt, if
any, must necessarily go in favour of the accused and thirdly, this
onus of the prosecution never shifts. There are catena of rulings
as to this principle of law that the burden of proving the guilt of
the accused is upon the prosecution and unless it relieves itself of
that burden, the court cannot record a finding of the guilt of the
accused. Prosecution must stand on its own legs and must prove
the story told by it at the very first stage. It is for the prosecution
to travel the entire distance from ‘may have’ to ‘must have’. The
manner of occurrence alleged by the prosecution must be
established beyond doubt before the accused can be convicted.
29. In S. L. Goswami v. State of Madhya Pradesh; 1972
SCR (3) 948, the Hon’ble Apex Court had observed as under:
” ….. the onus of proving all the ingredients of an
offence is always ;upon the prosecution and at no
stage does it shift to the accused. It is no part of the
prosecution duty to somehow hook the crook. Even
in cases where the defence of the accused does not
appear to be credible or is Palpably false that
burden does not become any the less. It is only
when this burden is discharged that it will be for the
accused to explain or controvert the essential
elements in the prosecution case which would
negative it. It is not however for the accused even at
the initial stage to prove something which has to be
eliminated by the prosecution to establish the
ingredients of the offence with which he is charged,
and even if the onus shifts upon the accused and the
accused has to establish his plea, the standard of
Digitally signed
RUBY by RUBY
NEERAJ
proof is not the same as that which rests. upon the NEERAJ KUMAR
Date:
FIR No. 588/2017 State v. Raja PS: Alipur Page 13 of 14
KUMAR 2025.01.21
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prosecution. Where the onus shifts to the accused,
and the evidence on his behalf probabilises the plea
he will be entitled to the benefit of reasonable
doubt.”
30. Further, in Kali Ram v State of Himachal Pradesh,
AIR 1973 SC 2773 the Hon’ble Apex Court has observed that
unless the evidence adduced in the case is consistent only with
the hypothesis of the guilt of the accused and is inconsistent with
that of his innocence the court should refrain from recording a
finding of guilt of the accused. It is also an accepted rule that in
case the court entertains reasonable doubt regarding the guilt of
the accused, the accused must have the benefit of that doubt. Of
course, the doubt regarding the guilt of the accused should be
reasonable.
31. Keeping in view the above discussed facts,
circumstances and evidence adduced, this court is of the
considered view that the case put forward by the prosecution has
many lacunas and the prosecution has despondently failed to
establish its case beyond the shadow of all reasonable doubts and
bring home the guilt of the accused. In view thereof, accused
Raja S/o Shyam Lal is hereby acquitted of the offence under
section 33 of Delhi Excise Act, 2009.
32. File be consigned to record room after due
compliance. RUBY Digitally signed by
RUBY NEERAJ
NEERAJ KUMAR
Announced in open court KUMAR
Date: 2025.01.21
16:43:12 +0530
on this 21st day of January, 2025 (Ruby Neeraj Kumar)
CJM (North District)
ROHINI COURT
FIR No. 588/2017 State v. Raja PS: Alipur Page 14 of 14
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