Delhi District Court
State vs Bhola on 23 August, 2025
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, ND.
FIR No.780/2023
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 2787/2024
State Vs. Bhola
S/o Rakesh,
R/o A-55, JJ Colony Pkt - 4, Bindapur,
Dabri, Dwarka, Delhi. ..... Accused
S. No. of the case : 2787/2024
The date of offence : 03.11.2023
The name of the complainant : Ct. Deepak
The name of the accused : Bhola
The offence complained : Section 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 23.08.2025
The date of order : 23.08.2025
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that on 03.11.2023, Ct. Deepak was
posted at PS Dabri as Constable. On that day, Ct. Deepak was on patrolling
duty in beat no.2. While patrolling when Ct. Deepak reached near A55, JJ
Colony, Bindapur, Ct. Deepak saw accused while he was taking one plastic
katta inside the house. On seeing him moving, Ct. Deepak ran towards him
and stopped him, asked him what is inside the plastic katta. Upon asking, he
did not give any satisfactory answer and thereafter, Ct. Deepak checked the
plastic katta and found containing illicit liquor. Ct. Deepak informed about
this to the DO. Thereafter, HC Sunil came to the spot.
2. An FIR bearing No. 780/2023 U/s 33 Delhi Excise Act was
registered at PS Dabri against the accused. Investigation of the case
FIR NO. 780/2023 State Vs. Bhola 1 Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:00:58
+0530
was handed over to Investigating Officer HC Sunil who filed the
chargesheet.
3. On completion of investigation, a chargesheet u/s 33 Delhi Excise
Act was filed against the accused. After taking cognizance of the
offence, the accused was summoned to face trial.
4. On his appearance, a copy of chargesheet along with documents
were supplied to the accused in terms of Section 207 of the Code of
Criminal Procedure (hereinafter referred to as ‘CrPC‘). On finding
prima facie case against the accused, a charge under section 33 Delhi
Excise Act was framed against him, to which he pleaded not guilty and
claimed trial.
5. During the course of trial, the prosecution examined the following
witnesses.
6. Ct. Deepak was examined as PW1. He stated thus: ” On 03.11.2023, I
was posted at PS Dabri as Constable. On that day, I was on patrolling duty in
beat no.2. While patrolling when I reached near A55, JJ Colony, Bindapur, I
saw accused while he was taking one plastic katta inside the house. On
seeing him moving, I ran towards him and stopped him, asked him what is
inside the plastic katta. Upon asking, he did not give any satisfactory answer
and thereafter, I checked the plastic katta and found containing illicit liquor.
I informed about this to the DO. Thereafter, HC Sunil came to the spot. IO
asked 4-5 public person to join the investigation but they refused to join the
same by stating their personal reasons and without stating their names. I
handed over abovesaid plastic katta full of illicit liquor and custody of
accused to the IO/HC Sunil. IO inspected the said plastic katta which was
found containing total 140 quarter bottles of mota desi masaledar sharab for
sale in Haryana only, 180 ml, from which one quarter bottle from each
plastic katta was taken as sample, the same was sealed with the seal of SK
and rest of the quarter bottles were placed in the white katta and sealed with
the seal of SK. IO prepared seizure memo vide Ex. PW1/A bearing my
signature at point A. IO filled M29 form. After that IO recorded my
statement which is Ex. PW1/B (bearing my signature at point A) and
prepared the rukka in my presence Ex. PW1/C. After that IO handed over
seal to me and gave me rukka for registration of FIR. Thereafter, I went to
PS and got the FIR registered, after sometime, I came back at the spot and
FIR NO. 780/2023 State Vs. Bhola 2 Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:01:16
+0530
handed over copy of FIR and original rukka to IO. IO prepared the site plan
at my instance Ex. PW1/D bearing my signature at point A. IO arrested and
personal searched the accused vide memos Ex. PW1/E and Ex. PW-1/F both
bearing my signature at point A. IO recorded my statement u/s 161 Cr.P.C. I
can identify the accused. Accused is present in the court and correct
identified by the witness. I can identify the case property, if shown to me. At
this stage, MHC(M) has produced the case property i.e. one unsealed sample
of mota desi masaledar desi sharab for sale in Haryana only, 180 ml. The
same is correctly identified by the witness. The same is Ex.A1. MHC(M)
has also produced a copy of destruction order dated 07.12.2024. Present FIR
is mentioned at S no. 107 of the same. The same is taken on record and
marked as Ex. A2 (OSR) (colly).”
7. In his cross-examination, PW1 stated thus: “IO came at the spot at about
10:30 AM and left the spot at about 03:30 PM. I went to PS for registration
of FIR at about 01:50 PM and came back at the spot at about 02:40 PM.
There were houses and shops near the spot. No notice was served to any
public person. No seal handing over memo was prepared in my presence. It
is correct that I do not know my departure or arrival entries pertaining to the
day of incident. Case property was taken to PS by IO in his private car. It is
incorrect to suggest that nothing incriminating has been recovered from the
possession of the accused or at the instance of accused or that all the
proceedings had been conducted while sitting at PS or that I am deposing
falsely.”
8. HC Sunil was examined as PW2. He stated thus: “On 03.11.2023, I was
posted at PS Dabri. On that day, on receiving DD No. 99A regarding the
apprehension of accused along with illicit liquor I reached at the spot i.e H
No. A55, JJ Colony, Pocket 4, Delhi where Ct. Deepak met me and handed
over the accused along with recovered liquor from him to me. I requested
some passers by to join the proceedings but none agreed and left the place
without disclosing their names and address. Thereafter, the said katta was
checked it was found containing 140 qtr. Bottles of mota masaledar desi
sharab. Thereafter, I took out one qtr bottle as sample and the rest of the
case property sealed with the seal of SK. The sample bottles were also
sealed with the seal of SK. Form M-29 was filled up Mark D bearing my
signature at point X. Seizure memo of case property was prepared vide
memo already Ex. PW1/A bears my signature at point X. Thereafter, I
recorded statement of Ct. Deepak which is already Ex.PW1/B bears my
attesting signature at point X and prepared a rukka already Ex.PW1/C
Digitally
signed by
FIR NO. 780/2023 State Vs. Bhola 3 HARSHAL
HARSHAL NEGI
NEGI Date:
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bearing my signature at point X and handed over the same to Ct. Deepak
for the registration of the case. He went to PS and after getting the case
registered returned to the spot and handed over the copy of FIR and
original rukka to me. I prepared the site plan already Ex.PW1/D bearing
my signature at point X. Accused was arrested and personal searched vide
memo already Ex.PW-1/E and Ex. PW-1/F both bearing my signature at
point X. Thereafter, we left the spot case property and samples were
deposited in the malkhana. I recorded the statement of witnesses. During
investigation, I got the samples deposited at ITO, Vikas Bhawan, Excise Lab
through Ct. Suresh vide RC no. 556/21/23 already Mark X. Accused is
present in the court today correctly identified by the witness. I can identify
the case property if shown to me. At this stage, MHC(M) has produced the
case property i.e. one unsealed sample of mota desi masaledar desi sharab
for sale in Haryana only, 180 ml. The same is correctly identified by the
witness. The same is already Ex.A1. MHC(M) has also produced a copy of
destruction order dated 07.12.2024. Present FIR is mentioned at S no. 107 of
the same. The same is already on record and marked as Ex. A2 (OSR)
(colly).”
9. In his cross-examination, he stated thus: ” I came at the spot at about
10:20 AM and left the spot at about 03:30 PM on my private motorcycle. Ct
Deepak went to PS for registration of FIR at about 02:05 PM and came back
at the spot at about 03:00 PM. There were houses and shops near the spot.
No notice was served to any public person. No seal handing over memo was
prepared in my presence. It is correct that I do not know my departure or
arrival entries pertaining to the day of incident. Case property was taken to
PS by me. It is incorrect to suggest that nothing incriminating has been
recovered from the possession of the accused or at the instance of accused or
that all the proceedings had been conducted while sitting at PS or that I am
deposing falsely.”
10. Statement of accused was recorded under Section 294 Cr.P.C
and he admitted the following documents:
a. FIR No. 780/2023 PS Dabri alongwith certificate
U/s 65B IEA as Ex.P1(Colly).
b. Entry in register no. 19 at RC No.556/21/23 as
Mark X.
c. Report of Excise Lab as Ex P2.
Digitally
FIR NO. 780/2023 State Vs. Bhola 4 signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:01:32
+0530
d. Statement of Ct. Suresh and HC Banwari Lal as
Ex.P3 and Ex.P4.
11. Thus, witness at serial No. 2, 4, 5 and 6 were dropped from the list
of witness.
12. The prosecution evidence was closed and thereafter the statement
of accused u/s 313 Cr.P.C was recorded on 10.07.2025 wherein all the
incriminating evidence appearing against the accused was put to him,
which he had denied to be correct and submitted that he was not found
in possession of illicit liquor. That he has been falsely implicated in
this present case. That he is innocent and all the witnesses deposing
against him are interested witnesses. The accused chose not to lead any
evidence in his defence.
13. It is argued by Ld. APP for the State that it is clear from the
statement of the complainant and other witnesses as well as the
documents appearing on record that the accused was in possession of
illicit liquor. He has thus, submitted that the prosecution has proved its
case beyond reasonable doubt against the accused and he be, therefore,
held guilty and convicted for the above-said offence.
14. Per contra, Ld. Counsel for the accused has argued that the State
has failed to establish its case beyond reasonable doubt and since
nothing incriminating has appeared against the accused, he be,
therefore, acquitted for the offence charged.
15. I have heard the Ld. APP for the State and Ld. Defence counsel at
length, perused the record, gone through the relevant provisions of law
and given my thoughts to the matter.
Findings of the Court
16. Before embarking on the analysis and appreciation of the
statements and evidences on record it is apposite to state that to bring
home the guilt of the accused in any criminal matter beyond the
shadow of reasonable doubt the burden rests always upon the
Digitally
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FIR NO. 780/2023 State Vs. Bhola 5 HARSHAL
HARSHAL NEGI
NEGI Date:
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prosecution. The burden of proof on the prosecution is heavy, constant
and does not shift. The case of the prosecution needs to stand on its
own footing failing which benefit of doubt ought to be given in favour
of the accused. Needless to say, in this case also, with or without
defense evidence, the prosecution has to establish its case beyond
reasonable doubt. On the touchstone of the above settled legal
proposition the facts of the present case are to be analysed.
I. Non-joining of Public Witnesses
17. One of the arguments of Ld. Counsel for the accused is that since
no independent witness has been joined at the time of investigation, it
is, therefore, difficult to believe the prosecution version as it creates a
doubt on the veracity of the statement of police witnesses.
18. This court has given its thoughts to the above contention of Ld.
Counsel for the accused. Perusal of the testimony of PW-1 and PW
2/IO reveal that they have categorically stated that there were
residential houses and public persons were passing by. They had also
asked public persons to join the investigation, but none of them had
agreed. Thus, it is not the case of the prosecution that no public person
was present at or near the spot of recovery. However, it is equally true
that no steps are shown to have been taken to note down the names and
addresses of those persons. It is a well settled proposition of law that
non-joining of public witness throws doubt over the fairness of the
investigation by police. Section 100 (4) of the CrPC also casts a
statutory duty on an official conducting search to join two respectable
persons of the society. However, no public person has been joined by
the IO in the present case.
19. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC
OnLine Del 469 , Hon’ble High Court of Delhi has observed as under:
“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 asFIR NO. 780/2023 State Vs. Bhola 6 Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:01:46
+0530
unworthy of reliance but their failure to join
witnesses from the public especially when they are
available at their elbow, may, as in the present
case, cast doubt. They have again churned out a
stereotyped version. Its rejection needs no
Napoleon on the Bridge at Arcola (Emphasis
supplied).
20. In the present case also, non-joining of any public person as a
witness creates doubt on the case of the prosecution. Although, this
Court is conscious of the fact that it is a well settled law that the
prosecution case cannot be thrown out or doubted on the sole ground
of non-joining of public witnesses as they keep themselves away from
the Court unless it is inevitable, however, in the present case, it is not
only the absence of public witnesses which raises a doubt on the
prosecution version but there are other circumstances too, as discussed
in the later part of the judgment, which raise suspicion over the
prosecution case.
II. No seal Handing over memo.
21. PW 2/IO in his cross examination stated that no seal handing over
memo was prepared by him. PW 1 also stated that no seal handing
over memo was prepared. Thus, in the instant case no handing over
memo of the seal was prepared which can suggest that case property
remained intact and there is no tampering with the same.
22. As per evidence available on record, the seal after use was not
given to any independent public person. Further, there is nothing on
record to prove whether the said seal was ever deposited in the
Malkhana of Police Station or not. In such case, tampering with case
property can also not be ruled out. As a result, the benefit of doubt has
to be given to the accused. Reliance is placed upon the decision
in Safiullah v. State, (1993) 49 DLT 193, where the Hon’ble High
Court of Delhi observed:
Digitally
signed by
HARSHAL
FIR NO. 780/2023 State Vs. Bhola 7 HARSHAL NEGI
NEGI Date:
2025.08.23
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“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. ……
Once a doubt is created in the preservation of the
sample the benefit of the same should go to the
accused.”
III. Discrepancy in the case qua Seizure Memo and Form M29.
23. There exists yet another discrepancy in the case of the prosecution.
PW 2/IO in his examination categorically stated that he prepared the
site plan, seizure memo, rukka and Form M 29 and then handed over
the rukka to PW 1 for the purpose of registration of FIR. PW1,
thereafter, went to the PS and got the FIR registered. PW 1 also
submitted the same. Thus, it is clear from the testimony of PW 2/IO
and PW 1 that the seizure memo and Form M 29 were prepared before
the tehrir/original rukka was handed over by PW2 IO to PW1 for
registration of the FIR. The FIR was thus, admittedly registered after
the preparation of the seizure memo and Form M 29, however,
surprisingly it bears the FIR number and it is thus worth wondering
that if the FIR was never registered at the time when the seizure memo
and Form M 29 were prepared, how the FIR number came to be noted
in the seizure memo and Form M 29 since the number of the FIR could
have come to knowledge of PW 2/IO only after a copy of the FIR was
brought to the spot by PW 1. Thus, the number of FIR in no
circumstances could have been mentioned by the IO on the seizure
memo and Form M 29, which came into existence before registration
of the FIR.
24. In this context, Hon’ble High Court of Delhi in Pawan Kumar v.
The Delhi Administration, 1987 SCC OnLine Del 290 , has observed as
under in paragraph 6:
Digitally
FIR NO. 780/2023 State Vs. Bhola 8 signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:02:03
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“Learned counsel for the State concedes that
immediately after the arrest of the accused, his
personal search was effected and the memo Ex.
PW11/D was prepared. 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. 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, about the genuineness
of the weapon of offence alleged to have been
recovered from the accused.”
25. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine
Del 859, the Hon’ble High Court of Delhi while dealing with an appeal
under the Narcotic Drugs and Psychotropic Substances Act, 1985 has
also observed about the discrepancy, i.e., appearance of FIR number
on seizure memo and other documents before registration of FIR and it
runs as under:
“Surprisingly, the secret information (Ex. PW7/A)
received by the Sub-Inspector Narender KumarDigitally
FIR NO. 780/2023 State Vs. Bhola 9 signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2025.08.23
15:02:10
+0530
Tyagi (PW-7), the notice under Section 50 of the
Act (Ex. PW5/A) alleged to have been served on
the appellant, the seizure memo (Ex. PW1/A) and
the report submitted under Section 57 of the Act
(Ex. PW7/D) bear the number of the FIR (Ex.
PW4/B). The number of the FIR (Ex. PW4/B)
given on the top of the aforesaid documents is in
the same ink and in the same handwriting, which
clearly indicates that these documents were
prepared at the same time. The prosecution has not
offered any explanation as to under what
circumstance number of the FIR (Ex. PW4/B) had
appeared on the top of the aforesaid documents,
which were allegedly prepared on the spot. This
gives rise to two inferences that either the FIR (Ex.
PW4/B) was recorded prior to the alleged recovery
of the contraband or number of the said FIR was
inserted in these documents after its registration. In
both the situations, it seriously reflects upon the
veracity of the prosecution version and creates a
good deal of doubt about recovery of the
contraband in the manner alleged by the
prosecution.”
26. In the light of the abovesaid judgments, the mentioning of the
number of FIR in the seizure memo creates serious doubt on the
prosecution version and alleged recovery of illicit liquor and it leads to
only one conclusion that either the said document was prepared later
on or that the FIR was registered earlier in point of time. In both the
aforesaid eventualities, a reasonable doubt has been raised on the
version of the prosecution the benefit of which has to be given to the
accused.
IV. No departure or the arrival entry of PW 1.
27. The present case rests entirely on the alleged recovery of case
property, i.e. illicit liquor, from the possession of the accused at the
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FIR NO. 780/2023 State Vs. Bhola 10 HARSHAL
HARSHAL NEGI
NEGI Date:
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relevant time by a police official PW 1, who was on patrolling duty at
the relevant time and place, as per the prosecution story.
28. Police officials are under a statutory duty to mark their departure
and arrival in the register kept in the police station for the purpose as
per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police
Rules, 1934, provides that 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 shall be entered vide a separate entry and this
entry shall be made immediately on arrival or prior to the departure of
the officer concerned and shall be attested by the latter personality by
signature or seal. In the present case, no departure or the arrival entry
has been proved on the record by the prosecution. In absence of the
departure and arrival entry of the police officials their presence at the
spot cannot be believed. Reference can be placed upon Rattan Lal Vs.
State 1987 (2) Crimes 29 Delhi High Court wherein it has been
observed:
“if the investigating agency deliberately
ignores to comply with the provisions of the
Act, the courts will have to approach their
action with reservations. The matter has to be
viewed with suspicion if the provisions of law
are not strictly complied with and the least
that can be said is that it is so done with an
oblique motive. This failure to bring on
record, the DD entries creates a reasonable
doubt in the prosecution version and attributes
oblique motive on the part of the
prosecution.”
29. In the present matter there exists no entry which could even
remotely suggest that PW 1 was assigned patrolling duty on the given
date and time and he went for the purpose of patrolling at the given
date and time.
30. Thus, in light of the above discussions which throws doubt on the
Digitally
signed by
FIR NO. 780/2023 State Vs. Bhola 11 HARSHAL
HARSHAL NEGI
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authenticity of the prosecution version, this court is of the opinion that
prosecution has failed to prove its case beyond reasonable doubt that
illicit liquor was recovered from the possession of the accused. The
accused Bhola, is, therefore, acquitted of the offence u/s 33/38 Delhi
Excise Act.
Announced in the open court on 23.08.2025.
Digitally
signed by
HARSHAL (Harshal Negi)
HARSHAL NEGI
NEGI Date: JMFC-02/Dwarka Court,
2025.08.23
15:02:28 New Delhi, 23.08.2025
+0530
It is certified that the present judgment runs into 12 pages and each
page bears my signature.
Digitally
signed by
HARSHAL (Harshal Negi)
HARSHAL NEGI
JMFC-02/DwarkaCourt,
NEGI Date:
2025.08.23
15:02:32 New Delhi, 23.08.2025
+0530
FIR NO. 780/2023 State Vs. Bhola 12