Delhi District Court
State vs Deepak on 7 May, 2025
Dated:07.05.2025
IN THE COURT OF MS. SANYA DALAL
JUDICIAL MAGISTRATE FIRST CLASS-I (N/W)
ROHINI COURTS, DELHI
New Case No. : R- 1439/2022
Title of the case: : State vs. Deepak
FIR No. : 775/2021 PS Sultanpuri
Date of institution : 25.02.2022
Date of reserving Judgment : 15.04.2025
Date of pronouncement : 07.05.2025
JUDGMENT :
(a) The date of commission 25.06.2021
(b)The name of complainant Ct. Sanjeev, No. 2169/OD.
(c) The name of accused Deepak S/o Sh. Ashok Kumar
R/o H. No. K-2/31, Krishan Vihar,
Sultanpuri, Delhi.
(d) The offence complained of 33/38 Delhi Excise Act & 77 JJ Act, 2015 (e)The plea of the accused Pleaded not guilty (f)The final order Acquittal (g)The date of such order 07.05.2025 (h) On behalf of Prosecution Sh. Pankaj Yadav (I) On behalf of Defence Sh. Prince Gupta JUDGMENT
1. In the present case, facts in brief as per the prosecution can
be stated as that on 25.06.2019 at 09:45 pm at H. No.
K-2/31, Krishan Vihar, Delhi, the accused was allegedly
found in possession of illicit liquor seized vide seizure
memo Mark A without any valid permit or license and in
FIR No. 775/2021 State Vs. Deepak Digitally
signed by Page No. 1 / 14
SANYA
SANYA DALAL
DALAL Date:
2025.05.07
16:20:23
+0530
Dated:07.05.2025contravention of provisions of Delhi Excise Act, hence,
he was prosecuted for the said allegations qua the offence
u/s 33/38 of The Delhi Excise Act, 2009.
Subsequently, on the abovesaid, date, time and
place, the accused found in handing over the abovesaid
illicit liquor to a minor, hence, he was prosecuted for the
said allegations qua the offence u/s 77 JJ Act, 2015.
2. Upon completion of investigation, chargesheet was filed
u/s 33/38 of The Delhi Excise Act, 2009 and u/s 77 JJ Act,
2015 against the accused.
3. The cognizance of the offences u/s 33/38 of Delhi Excise
Act as well as u/s 77 JJ Act, 2015 was taken on
25.02.2022 and the accused was summoned. Upon
appearance of the accused, the compliance of Section 207
Cr.P.C. was carried out.
4. The material on record prima facie disclosed the
commission of offences u/s 33/38 of The Delhi Excise Act,
2009 and u/s 77 JJ Act, 2015. The charge was accordingly
framed against the accused on 31.05.2023 under Section
33/38 of the Delhi Excise Act and u/s 77 JJ Act, 2015 to
which he pleaded not guilty and claimed trial. Hence, this
Court conducted trial.
5. For proving its case, prosecution examined 05 witnesses.
i. PW-1 HC Sanjeev has deposed that he was on
patrolling duty in the area of K-2Block, Krishan Vihar,
Delhi and upon reaching at K-2/32, Krishan Vihar,
Digitally
signed by
FIR No. 775/2021 State Vs. Deepak SANYA Page No. 2 / 14
SANYA DALAL
DALAL Date:
2025.05.07
16:20:27
+0530
Dated:07.05.2025Delhi, he met with one boy aged about 14-15 years
with one quarter bottle. On seeing him, the minor child
tried to flee away from the spot. Upon enquiry, the
minor disclosed his name Tushar and told that he took
the same from the person namely Deepak from K-2/31,
Krishan Vihar, Delhi. At the instance of the said child,
he apprehended the accused and gatta patties were
recovered from his house. The information of the same
was given to the PS. IO ASI Sudesh came at the spot
and the custody of the accused and the illicit liquor
were handed over to him. Thereafter, IO requested 4-5
persons to join the investigation but none of them
joined the same. Thereafter, the IO opened the katta and
found total 50 gatta patis containing 50 half bottle each
of Santra Desi Sharab which were sealed with the seal
of SK and Form M-29 was prepared. Thereafter, IO
recorded his statement Ex. PW1/A and prepared tehrir.
The FIR was registered on the basis of said statement
and the IO prepared the site plan as well as the seizure
memo which was Ex. PW1/B. The accused was
arrested vide arrest memo Ex. PW1/C and conducted
personal search vide personal search memo Ex.
PW1/D. The accused and the case property were
correctly identified by the witness.
During cross-examination, the witness
deposed that prior to the registration of the FIR, the IO
had filled Form M-29.
FIR No. 775/2021 State Vs. Deepak Digitally
signed by
Page No. 3 / 14
SANYA
SANYA DALAL
DALAL Date:
2025.05.07
16:20:33
+0530
Dated:07.05.2025ii. PW-2 HC Rakesh was the MHCM who deposed that
on 25.06.2021, the IO deposited the case property
alongwith Form M-29 and the seal of SK vide Entry no.
3881/21 which is Ex. PW2/A.During cross-examination, the witness
deposed that there is no receiving in Column no. 7.
iii. PW-3 SI Sudesh has deposed that after receiving DD
No. 166A, he alongwith Ct. Harpal went to the spot i.e.
H. No. K-2/31, Krishan Vihar, Delhi where they met
with Ct. Sanjeev who handed over the custody of
accused and the illicit liquor to him. He requested 4-5
persons to join the investigation but none of them
joined the same. Thereafter, the he opened the katta and
found total 50 gatta patis containing 50 half bottle each
of Santra Desi Sharab and took out one sample from
each sealed with the seal of SK and Form M-29 was
prepared. Thereafter, he recorded the statement of Ct.
Sanjeev already Ex. PW1/A and prepared tehrir Ex.
PW3/A. The FIR was registered on the basis of said
statement and the IO prepared the site plan Ex. PW3/B
as well as the seizure memo which was already
Ex.PW1/B. The accused was arrested vide arrest memo
already Ex. PW1/C and conducted personal search vide
personal search memo already Ex. PW1/D. The accused
and the case property were correctly identified by the
witness.
FIR No. 775/2021 State Vs. Deepak Digitally Page No. 4 / 14
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.05.07
16:20:53
+0530
Dated:07.05.2025During cross-examination, the witness
deposed that prior to the registration of the FIR, he had
filled Form M-29.
iv. PW-4 HC Jitender has deposed that on 07.07.2021, he
deposited the sample of the case property in Excise Lab
vide RC No. 263/21/21.
v. PW-5 HC Harpal has depoed on exact similar lines as
that of PW3 as after receiving the DD No. 166A, they
visited the spot.
Thus his testimony is not reproduced for the
sake of brevity.
6. Vide separate statement of the accused u/s 294 Cr.PC r/w
313 Cr.PC he admitted the genuineness of DD No. 166A,
present FIR, Certificate u/s 65B of Indian Evidence Act
and Chemical Examiner Report as Ex. P-1, Ex. P-2, Ex.
P-3 and Ex. PX-4 respectively and consequently the
relevant witnesses were dropped.
7. Upon completion of prosecution evidence, the accused was
examined in accordance with Section 313 Cr.P.C. The
entire incriminating evidence was put to him and he denied
the same and stated to be have been falsely implicated. The
accused opted not to lead DE.
8. Final arguments were heard.
9. Sh.Pankaj Yadav, Ld. APP for the State argued that on the
basis of the entire evidence brought on record, the guilt of
the accused has been established beyond reasonable doubt
SANYA
FIR No. 775/2021 State Vs. Deepak DALAL Page No. 5 / 14
Digitally signed
by SANYA DALAL
Date: 2025.05.07
16:21:03 +0530
Dated:07.05.2025
accordingly, the accused shall be convicted. He further
argued that from the entire evidence led by the
prosecution, it is clearly established that illicit liquor
without any permit/license was recovered from the
possession of the accused person.
10.On the other hand, Sh. Prince Gupta, Ld. Counsel for the
accused argued that no public witness was examined as
PW. He further argued that there are material
contradictions in the testimony of PWs. He had also
argued that no handing over memo of seal was prepared.
Applicable Law and its application to present facts
11.Section 33 of The Delhi Excise Act, 2009 provides penalty
for unlawful import, export, transport, manufacture,
possession, sale etc. of any intoxicant or liquor. Section 38
of the Delhi Excise Act, 2009 provides penalty for
possession of unlawfully imported liquor without paying
the prescribed duty for the same.
“33. Penalty for unlawful import, export, transport,
manufacture, possession, sale, etc. (1) 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 works any
manufactory or warehouse; (c) bottles any liquor for
purposes of sale; (d) uses, keeps or has in his
possession any material, still, untensil, implement or
apparatus, whatsoever, for the purpose of
manufacturing any intoxicant other than toddy or
tari; (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
packed or any apparatus or implement or machine
for the purpose of packing any liquor; (f) sells any
Digitally
FIR No. 775/2021 State Vs. Deepak signed by
SANYA
Page No. 6 / 14
SANYA DALAL
DALAL Date:
2025.05.07
16:21:12
+0530
Dated:07.05.2025intoxicant, 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.”
“Section 77 in The Juvenile Justice (Care And
Protection Of Children) Rules, 2007: (1)When any
juvenile or child is produced before a Magistrate
other than Board or Committee, and the Magistrate
is of the opinion that such person is a juvenile or
child, he shall record his reasons and send the
juvenile or child to the appropriate competent
authority. (2)In case of a juvenile produced before a
Magistrate not empowered under this Act, such
Magistrate shall direct the case to be transferred to
the Board for inquiry and disposal.(3)In case of a
child in need of care and protection produced as a
victim of a crime before a Magistrate not
empowered under the Act, such Magistrate shall
transfer the matter concerning care and protection,
rehabilitation and restoration of the child to the
appropriate Committee. ”
12.Before a person can be held liable for commission of any
offence, the prosecution has to establish his guilt beyond
reasonable doubt.
13.I shall now delve into the appraisal of material available on
record.
14.Proof regarding the complainant being on patrolling duty:
It would be pertinent to note that there is no
proof/material on record to prove that PW1 on patrolling
duty on the relevant point of time i.e. on 25.06.2021 in the
area of K-2 Block, Krishan Vihar, Delhi. Further, there is
no departure entry to the said effect.
Digitally
FIR No. 775/2021 State Vs. Deepak signed by
SANYA
Page No. 7 / 14
SANYA DALAL
DALAL Date:
2025.05.07
16:21:17
+0530
Dated:07.05.2025At 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.
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 by Hon’ble High
Court of Delhi in Rattan Lal Vs. State 1987 (2) Crimes 29,
held that;
“if the investigating agency deliberately ignores to
comply with the provisions of the Act the Courts
will have to approach their action with reservations.
The matter has to be viewed with suspicion if the
provisions of law are not strictly complied with and
the least that can be said is that it is so done with an
oblique motive. This failure to bring on record, the
DD entries creates a reasonable doubt in the
prosecution version and attributes oblique motive on
the part of the prosecution.”
FIR No. 775/2021 State Vs. Deepak Digitally
signed by Page No. 8 / 14
SANYA
SANYA DALAL
DALAL Date:
2025.05.07
16:21:37
+0530
Dated:07.05.2025In the instant case this provision has not been
complied by the concerned Police Witnesses/ PW1. The
relevant entries regarding the arrival and departure of the
police officials have not been proved.
15.Non Joining of any independent public witnesses:
As per the version of PW1, PW-3 and PW5, the
public persons were asked to join the investigation but
none of them agreed and went away without disclosing
their names and addresses. Further the IO has not produced
any notice u/s 160 of the Cr.PC which ought to have been
served upon those available independent witnesses who
allegedly refused to join the investigation.
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 it should be shown by the police that sincere
efforts have been made to join independent
witnesses. In the present case, it is evident that no
such sincere efforts have been made, particularly
when we find that shops were open and one or two
shop keepers could have been persuaded to join the
raiding party to witness the recovery being made
from the appellant. In case any of the shopkeepers
had declined to join the raiding party, the policeDigitally
FIR No. 775/2021 State Vs. Deepak signed by
SANYA
Page No. 9 / 14
SANYA DALAL
DALAL Date:
2025.05.07
16:21:41
+0530
Dated:07.05.2025could 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.”
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 scrutinised 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 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 interalia 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
Digitally
signed by
SANYA
FIR No. 775/2021 State Vs. Deepak SANYA DALAL Page No. 10 / 14
DALAL Date:
2025.05.07
16:21:46
+0530
Dated:07.05.2025statement 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.”
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”
Therefore, in view of the above mentioned case law,
it becomes clear that while 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.
16.No handing over memo of the seal was prepared.
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.
Digitally
FIR No. 775/2021 State Vs. Deepak signed by Page No. 11 / 14
SANYA
SANYA DALAL
DALAL Date:
2025.05.07
16:21:51
+0530
Dated:07.05.2025As per evidence available on record, the seal after
use was not given to any independent public person.
Moreover, there is no seal handing over memo on record.
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:
“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.”
17.No photography of case property was carried out by the
investigating agency.
Also, the testimony of all the prosecution witnesses
is completely silent upon the aspect of the photography of
the case property. Accordingly, no photographs of the case
property were taken at the time of recovery. In Manjeet
Singh v State (2014) 214 DLT 646 Hon’ble High Court of
Delhi has observed that detailed punchnama containing the
inventory should be prepared and photographs of the entire
lot should be taken. It was further observed in Para 75 of
the said judgment that the sample alongwith the
Digitally
FIR No. 775/2021 State Vs. Deepak signed by
SANYA Page No. 12 / 14
SANYA DALAL
DALAL Date:
2025.05.07
16:21:55
+0530
Dated:07.05.2025photographs and punchnama would be sufficient evidence
during trial. In the present case, no punchnama was
produced. No photographs of the entire lot were produce.
In this regard though Section 60 of the Excise Act provides
that non production of the case property does not effect the
conviction, however, at the same time the provisions also
laid down those samples and the photographs of the
confiscated property are to be preserved to meet
evidentiary requirements. Without production of any
photographs and sample bottle of the case property, the
standard cannot be said to be met beyond reasonable
doubt.
18.Doubtful Form M-29
As per PW3 and PW5, firstly, the IO had filled Form
M-29 and then the rukka was prepared on account of
which the present FIR was registered. However, the Form
M-29 is bearing the FIR No., thus suggesting the ante-
time/ dated Form M-29, eventually creating suspicion
upon the case of the prosecution.
19.It was also the case of the prosecution that the accused was
allegedly selling the illicit liquor through a minor on
25.06.2021, however, as pointed out hereinabove, neither
the prosecution could prove beyond reasonable doubt that
the recovery of the illicit liquor was effected from the
possession of the accused, nor it was proved that the
accused was actually selling the liquor to a minor as
alleged.
SANYA
FIR No. 775/2021 State Vs. Deepak
DALAL Page No. 13 / 14
Digitally signed by
SANYA DALAL
Date: 2025.05.07
16:22:02 +0530
Dated:07.05.2025
20.In view of the above contradictions which are material in
nature, it can be safely concluded that prosecution has
miserably failed to establish beyond reasonable doubt the
case against the accused.
21.Hence, the benefit of doubt has to be given to the accused.
Accordingly, accused namely Deepak S/o Sh. Ashok
Kumar stands acquitted of the offences under Section
33/38 The Delhi Excise Act, 2009 and under Section 77 JJ
Act, 2015.
22.Bail bonds filed by the accused earlier stands extended
towards compliance of section 437A Cr.PC and they shall
remain in force for the period of six months from today.
23.File be consigned to record room after due compliance.
Announced, dictated and signed Digitally
signed by
in the open court on this day
SANYA
SANYA DALAL
DALAL Date:
i.e. 07th May, 2025 2025.05.07
16:22:08
+0530
(Be uploaded forthwith)
(SANYA DALAL)
JMFC-01/North-West District
Rohini Court, Delhi
FIR No. 775/2021 State Vs. Deepak Page No. 14 / 14