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Delhi District Court
State vs Amit Gupta on 10 June, 2025
IN THE COURT OF MS. KOMAL GARG, JUDICIAL MAGISTRATE FIRST
CLASS-03, WEST, THC, DELHI.
DLWT020149712020
CC No. 8909/2020
State Vs. Amit Gupta
FIR No. 210/2020
PS: Maya Puri
ID No. : 8909/2020
Date of commission of offence : 21.04.2020
Date of institution of the case : 15.12.2020
Name of the complainant/ : HC Sandeep Kumar
informant
Name of accused and address : Amit Gupta S/o Late Sh. Naresh Gupta
R/o WZ-258, Nangal Raya Delhi, Mayapuri,
West, Delhi
Offence complained of or proved : U/s 33/38 Delhi Excise Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 10.06.2025
JUDGMENT
1. The case of the prosecution in brief is that on 21.04.2020 at about 4 PM in front of
Shop No. WZ-258, Nangal Raya, Delhi within the jurisdiction of PS Mayapuri, the
accused was found in possession of total 11 bottles of illicit liquor 750 ml each, out of
Digitally signed
by KOMAL
KOMAL GARG
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri GARG Date:
2025.06.10 Page No. 1/11
16:33:40 +0530
which 08 bottles were of All Season whiskey and 03 bottles were of Royal Challenge
whiskey, for sale in Haryana only seized as per seizure memo Mark X without any
permit or license in contravention of provisions of Delhi Excise Act and thereby accused
committed an offence punishable u/s 33/38 Delhi Excise Act.
After completion of necessary formalities, charge sheet was filed in this Court.
Cognizance was taken. The accused was summoned. Charge was framed against the
accused, to which he pleaded not guilty and claimed trial.
2. PROSECUTION EVIDENCE
In order to substantiate its case, prosecution has examined 02 witnesses. The
testimony of all the witnesses are reproduced hereunder for ready reference and the
relevancy and admissibility of said testimony will be dealt with at the later part of the
judgment :
3. Statement of PW1 HC Datar Singh Rathor :
“On 21.04.2020, I was posted at PS Maya Pur as HC. On that day, I was present
in the PS and investigation of the present case was marked to me. Thereafter, I along
with Ct. Jitender reached at the spot i.e. at in front of shop no. WZ-258, Nangal Raya,
Delhi, where HC Sandeep and accused Amit Gupta met us. HC Sandeep had handed
over me the seizure memo of illicit liquor, handing over memo of seal, Form M-29 and
custody of the accused and case property. Thereafter, I prepared the site plan at the
instance of HC Sandeep, which is Ex. PW-1/A bearing my signatures at point A. At that
time, lock-down was going on. Therefore, the accused was not arrested in the present
case and he was released after giving the notice U/s 41A of Cr.P.C. and notice is Ex.
PW-1/B bearing my signatures at point A. I recorded the disclosure statement of the
accused vide disclosure memo, which is Ex. PW-1/C bearing my signatures at point A.
Digitally signed
by KOMAL
KOMAL GARG
GARG Date:
2025.06.10
16:33:50 +0530
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri Page No. 2/11
Thereafter, the accused was discharged from the spot. I along with Ct. Jitender and case
property came to PS and case property was deposited in Malkhana. Two Sample bottles
were sent to Excise Lab. and MHC(M) collected excise report and the same was
handed over to me and I placed the same on file. I prepared charge-sheet and the same
is filed before the court.
The accused is present in the court today and correctly identified by the witness.
I can identify the case property, if it shown to me.
[MHC(M) has also produced two bottles (without seal) of liquor one having label
of All Seasons Golden Collection Reserve Whiskey for sale in Haryana only and
another bottle having label of Royal Challenge Classic Premium whiskey for sale in
Haryana only. Both bottles are having the FIR No. 210/20. The witness states that it is
same liquor which was recovered from the possession of the accused. The case property
is now Ex. P-1 (Colly).]
[At this stage, MHC(M) has produced an order dated 08.07.2021 passed by
Assistant Commissioner Excise whereby and where under the case property of the
present case was confiscated and destroyed as per Delhi Excise Rules, 2010. The copy
of the said order is marked as Mark-A (running in 3 pages) (Colly). Two photographs
are Ex. P-2 (Colly). Certificate U/s 65B of Indian Evidence Act is Mark-B.]
[MHC(M) has produced the GD No. 27A qua destroying order and one CD and
same is Mark B and Ex. P-3 respectively]”. Thereafter, he was duly cross-examined by
ld. counsel for accused.
4. Statement of PW2 HC Sandeep:
“On 21.04.2020, I was posted at PS Maya Puri as HC. On that day, I along with
Ct. Jitender was on patrolling duty in the area of PS Maya Puri. During patrolling duty,
at about 4.00 p.m., we were proceeding towards side of Delhi Cantt. by side of Delhi
Cantt. Flyover. When we reached at shop situated at WZ-258, Nangal Raya, Delhi, I
Digitally signed
by KOMAL
KOMAL GARG
GARG Date:
2025.06.10
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri 16:33:59 +0530 Page No. 3/11
saw that one person was going under the flyover along with plastic katta. On suspicion,
I had apprehended him after chasing. On interrogation, his name was disclosed as Amit
Gupta S/o Naresh Gupta R/o WZ-258, Nangal Raya, Delhi.
On asking about plastic katta, he did not give any satisfactory reply. I checked
white colour plastic katta and it was found containing illicit liquor.
I asked 2-3 passers-by to join the investigation but none of them agreed and they
left the spot without disclosing their names and addresses citing reasonable excuses and
therefore, notice could not be served upon the passers-by due to paucity of time.
Without wasting time, I again checked white colour plastic katta and it was found
containing 8 bottles having the label of All Seasons Whiskey for sale in Haryana only &
3 bottles having the label of Royal Challenge Whiskey for sale in Haryana only. 1
sample bottle was removed from the above said all season whiskey and one from Royal
Challenge whiskey. Sample bottles were given the serial no. 1 & 2. Rest of the case
property were put back in the same plastic katta. Plastic katta was given the serial no. 3
and sample bottles & katta were sealed with seal of SY.
I also filled up Form M-29 at the spot and sealed with the same seal. After use,
the seal was handed over to Ct. Jitender. Then, IO took the entire case property into
police possession vide seizure memo which is already Mark-X and now, the same is Ex.
PW-2/A bearing my signature at point A. I had also prepared the handing over memo of
the seal vide handing over memo, which is Ex. PW-2/B bearing my signature at point A.
Thereafter, I prepared the rukka which is Ex. PW-2/B1 bearing my name at point
A and handed over the same to Ct. Jitender for registration of FIR. Ct. Jitender took the
same to the PS and got the FIR registered and he came back at the spot along with 2nd
IO/HC Datar Singh. I handed over the custody of the accused, case property and
relevant documents to 2nd IO/HC Datar Singh. 2nd IO/HC Datar Singh prepared the
site plan at my instance which is already Ex. PW-1/A bearing my signature at point B. I
was discharged from the spot at about 6.00 p.m.
KOMAL Digitally signed
by KOMAL GARG
GARG Date: 2025.06.10
16:34:08 +0530
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri Page No. 4/11
The accused is present in the court today and correctly identified by the witness
I can identify the case property, if it shown to me.
[At this stage, it is observed that case property has already been exhibited in the
testimony of PW-1]”. Thereafter, he was duly cross-examined by ld. counsel for
accused.
5. Thereafter, statement of accused u/s 313 of Cr.P.C. was recorded, wherein all the
incriminating facts were put to the accused. Accused submitted that he was innocent and
he has been falsely implicated in the present case. Although in his statement recorded
u/s 313 CrPC accused stated that he wanted to lead DE, yet on next date of hearing i.e.
25.04.2025, accused submits that he does not want to lead defence evidence.
Accordingly, DE of the accused has been closed.
6. I have heard Sh. Arvind Dahiya, Ld. APP and carefully perused the record in
extenso. Ld. APP has canvassed that the prosecution has been successful in proving the
guilt of the accused beyond reasonable doubt as testimony of all the witnesses were not
impeached by the accused. Per contra, Ld. Counsel for the accused submitted that no
public witnesses were examined in the present case regarding recovery of illicit liquor.
He further submitted that the accused has been falsely implicated in the present case.
7. It is cardinal principle of criminal jurisprudence that an accused is presumed to be
innocent and, therefore, the burden lies on the prosecution to prove the guilt of the
accused beyond reasonable doubt. The prosecution is under a legal obligation to prove
each and every ingredient of the offence beyond any doubt, unless otherwise so provided
by any statute. This general burden never shifts and it always rests on the prosecution.
Digitally
signed by
KOMAL KOMAL
Date:
GARG
GARG 2025.06.10
16:34:21
+0530State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri Page No. 5/11
8. Although, sub section (1) of section 52 of Delhi Excise Act, 2009 enunciates that
in case of prosecution u/s 33, it shall be presumed, until the contrary is proved, that the
accused has committed the offence punishable under that section in respect of any
intoxicant, still, utensil, implement or apparatus for the possession of which he is unable
to account satisfactorily. Relevant extract of the said provision is reproduced below:
“Presumption as to commission of offence in certain cases. – (1)In
prosecution under Section 33, it shall be presumed, until thecontrary
is proved, that the accused person has committed theoffence
punishable under that section in respect of any intoxicant, still,
utensil, implement or apparatus, for thepossession of which he is
unable to account satisfactorily.
(2) Where any animal, vessel, cart or other vehicle is used inthe
commission of an offence under this Act, and is liable
toconfiscation, the owner thereof shall be deemed to be guilty
ofsuch offence and such owner shall be liable to be
proceededagainst and punished accordingly, unless he satisfies the
courtthat he had exercised due care in the prevention of
thecommission of such an offence.”
9. But this presumption is rebuttable and accused can rebut the same by either
referring to the prosecution’s evidence or by adducing defence evidence. Also, it should
be noted that the words “for the possession of which he is unable to account
satisfactorily” used in Section 52(1) of the Delhi Excise Act clearly reveal that as a
prerequisite for the presumption under the aforesaid provision being raised against the
accused, it is imperative for the prosecution to successfully establish the recovery of the
said alleged articles from the possession of the accused. It is only after the prosecution
has proved the possession of the alleged articles by the accused that the accused can be
called upon to account for the same.
10. However, for the reasons mentioned hereinafter the prosecution has failed to
establish beyond reasonable doubt that the accused was found in possession of the
alleged illicit liquor. Accordingly, no presumption as provided for under Section 52 of
the Delhi Excise Act can be raised against the accused in the present case. Hence, he
Digitally
signed by
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri KOMAL KOMAL
Date:
GARG
Page No. 6/11
GARG 2025.06.10
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+0530
deserves to be acquitted.
11. During the final arguments, Ld. Counsel for the accused submitted that the
prosecution did not examine even a single public witness to prove the recovery of illicit
liquor from the possession. In the present case, the recovery witnesses are only police
witness and accused has been falsely implicated in the present case.
12. It is a well settled proposition that non-joining of public witness shrouds doubt
over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a
statutory duty on an official conducting search to join two respectable persons of the
society. Same has not been done in the present case. This casts a doubt on the fairness of
the investigation.
13. From the overall testimony of the witnesses, it appears that no sincere efforts,
have been made to join the public persons in the investigation. The witnesses examined
by the prosecution are police witness. Not even a single public witness was examined by
the prosecution nor joined in the investigation and no plausible reason could be put
forward by the prosecution witnesses that for what reason they were unable to gather
support from public or independent witnesses to establish the guilt of the accused.
Reference could be sought from the decision of the Hon’ble Delhi High Court in the
case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127.
14. In the instant case, as per the testimonies of PWs and also from the perusal of site
plan, the alleged recovery was made from a busy locality. Therefore, it cannot be said
that no public person would have been available at the spot. Although prosecution
witnesses have asserted that they implored some of the public witnesses to join the
investigation but they refused to participate in the investigation. This explanation
Digitally signed
by KOMAL
KOMAL GARG
GARG Date:
2025.06.10
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri 16:34:42 +0530 Page No. 7/11
tendered by the prosecution witnesses does not seem to be tenable as neither the details
of those public persons have been brought on record nor any legal action was taken
against those persons under relevant sections of law who had declined to assist the
police in investigation. If the public persons were really present at the spot, then the
police officials should have made endeavor to get them join the investigation. They
should have issued notice asking them to join the investigation. On their refusal,
necessary action as per law could have been taken against them. The failure on the part
of the police personnel could only suggest that they were not interested in joining the
public persons in the police proceedings. Failure on the part of the police officials to
make sincere effort to join public witnesses for the proceedings when they may be
available creates reasonable doubt in the prosecution story. Reference can be taken from
the decision of Anoop Joshi Vs. State 1992 (2) C.C.Cases 314 (HC), Hon’ble High Court
of Delhi has observed as under;
“It is repeatedly laid down by this Court that in such cases
itshould be shown by the police that sincere efforts have
beenmade 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 ortwo
shop keepers could have been persuaded to join the raiding
party to witness the recovery being made from the appellant.
In case any of the shopkeepers had declined to join the raiding
party, the police could have later on taken legal action against
such shopkeepers because they could not have escaped the
rigours of law while declining to perform their legal duty to
assist the police in investigation as a citizen, which is an
offence under the IPC.”
15. While the testimony of the police officials cannot be discarded away merely because
of the fact that no public witnesses were not examined, however, their testimonies have
to be scrutinized in more detail. If it is found the police officials during the course of
investigation did not even make endeavour to ask the public witnesses to join the
investigation, did not even ask their names and details etc. then it would cast a very
Digitally
signed by
KOMAL KOMAL
Date:
GARG
GARG 2025.06.10
16:34:51
+0530
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri Page No. 8/11
serious doubt on the testimonies of the police officials. At this stage,reference can be
taken from the decision of the Hon’ble Supreme Court in the case of Tahir v. State
(Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon’ble Apex Court
held inter alia the following:
“In our opinion no infirmity attaches to the testimony of the police
officials, merely because they belong to the police force and there is
no rule of law or evidence which lays down that conviction cannot
be recorded on the evidence of the police officials, if found reliable,
unless corroborated by some independent evidence. The Rule of
Prudence, however, only requires a more careful scrutiny of their
evidence, since they can be said to be interested in the result of the
case projected by them. Where the evidence of the police officials,
after careful scrutiny, inspires confidence and is found to be
trustworthy and reliable, it can form basis of conviction and the
absence of some independent witness of the locality to lend
corroboration to their evidence, does not in any way affect the
creditworthiness of the prosecution case. The obvious result of the
above discussion is that the statement of a police officer can be
relied upon and even form the basis of conviction when it is
reliable, trustworthy and preferably corroborated by other evidence
on record.”
16. The requirement of the police officials to make endeavour to ask the public
witnesses to join the proceedings was discussed by the Hon’ble Supreme Court in the
case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417 , wherein it interalia held the
following:
“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”
17. Therefore, in view of the above mentioned case law, it becomes clear that while
Digitally
signed by
KOMAL KOMAL
Date:
GARG
GARG 2025.06.10
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri 16:34:59
+0530 Page No. 9/11
the testimony of the police officials cannot be discarded away forthwith in the absence
of any public witnesses, however, it would be prudent to examine or scrutinize their
testimonies more closely and should preferably be corroborated.
18. The prosecution did not even bring on record necessary DD entries to prove
arrival and departure of the police officials from the police station. It should be noted
that if the police personnel who has apprehended the accused with illegal liquor was on
patrolling duty, prosecution should have brought the relevant records showing his arrival
and departure and should have proved by documentary evidence that he was on
patrolling duty by producing DD entry for the same.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of
the Punjab Police Rules, which is reproduced as under;
“Chapter 22 rule 49 Matters to be entered in Register no. II.The
following matters shall amongst others, be entered:- (c) The hour of
arrival and departure on duty at or from a police station of all
enrolled police officers of whatever rank, whether posted at the
police station or elsewhere, with a statement of the nature of their
duty. This entry shall be made immediately on arrival or prior to the
departure of the officer concerned and shall be attested by the latter
personally by signature or seal. Note:- The term Police Station will
include all places such as Police Lines and Police Posts where
Register No. II is maintained.
19. Perusal of the above rule clearly suggests that the police officials are mandated to
record their time of arrival and departure on duty at or from the police station. In the
instant case, this provision has not been complied by the concerned police witnesses.
The relevant entries regarding the arrival and departure of the police officials have not
been proved on record. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the
Hon’ble Delhi High Court held that;
“if the investigating agency deliberately ignores to comply with the
provisions of the Act the Courts will have to approach their action
with reservations. The matter has to be viewed with suspicion if the
provisions of law are not strictly complied with and the least that
Digitally
signed by
KOMAL KOMAL
Date:
GARG
GARG 2025.06.10
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri 16:35:10
+0530 Page No. 10/11
can be said is that it is so done with an oblique motive. This failure
to bring on record, the DD entries creates a reasonable doubt in the
prosecution version and attributes oblique motive on the part of the
prosecution.”
20. Since all the witnesses are police personnel and the necessary safeguards in the
investigation have not been followed by the IO, I am of the view that chances of false
implication of accused under the provisions of Excise Act cannot be ruled out at the
instance of the police. It is also pertinent to note that PW2 HC Sandeep had deposed that
” it is correct that I had not prepared the site plan of the spot. Site plan was signed by the
accused”, however, on perusal of site plan ie Ex. PW1/A, signatures of HC Sandeep can
be seen and there are no signatures of accused on it. On the contrary, PW1 IO/HC Datar
Singh had deposed that he prepared the site plan at the instance of HC Sandeep. It is
also worth noting that samples were served on 21.4.2020 and dispatched on 7.7.2020
and therefore, the tampering cannot be ruled out.
21. It is true that evidence is to be weighed and not counted but in this case whatever
evidence has been produced by the prosecution is not sufficient to fortify the edifice of
the prosecution’s case and the prosecution fails to prove all the links. In case where the
prosecution has failed to prove all the links, the benefit of doubt has to be given to the
accused. Accused is giving benefit of doubt. As such the accused deserves acquittal in
the present case.
22. Therefore, in view of the above discussions and findings, the accused Amit Gupta
S/o Naresh Gupta is acquitted for the offence u/s 33/38 of Delhi Excise Act.
Announced in the open Court, Digitally
signed by
KOMAL
10.06.2025 KOMAL
GARG
GARG
Date:
2025.06.10
(Komal Garg)
16:35:25
+0530
JMFC-03 (West),THC Delhi
10.06.2025
State Vs. Amit Gupta FIR No. 210/20, PS Mayapuri Page No. 11/11
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