Delhi District Court
State vs Devinder on 31 May, 2025
IN THE COURT OF SH. ARIDAMAN SINGH CHEEMA,
JMFC-05, SED, SAKET COURTS, DELHI
DLSE020388282022
Cr. Case No. -: 9379/2022
FIR No. -: 444/2020
Police Station -: Sarita Vihar
Section(s) -: 33/38/52 Delhi Excise Act
STATE
VS.
DEVINDER
1. Name of Complainant :- SI Kulbir Singh
No. 2575-D
2. Name of Accused Person :- Devinder S/o Sh.
Ramkhiladi and Shashi
Kumar S/o Jarman
Singh
3. Offence complained of or proved :- 33/52 Delhi Excise Act
4. Plea of Accused Persons :- Not guilty
5. Date of Commission of offence :- 26.11.2020
6. Date of Filing of case :- 17.10.2022
7. Date of Reserving Order :- 24.05.2025
8. Date of Pronouncement :- 31.05.2025
9. Final Order :- Acquitted
Aridaman
singh
cheema
Digitally signed by
Aridaman singh
FIR No. 444/2020 State vs. Devender Page 1 of 27 cheema
Date: 2025.05.31
16:32:31 +0530
JUDGMENT
1. The case of prosecution in brief is that on 26.11.2020 at
10:30AM at Aali Vihar Jungle, Back Side Metro Deport, Sarita Vihar,
towards Peer Baba side road, both accused were found in possession
of illicit liquor as mentioned in seizure memo without having permit
of license.
2. After registration of the case, necessary investigation was
carried out by the IO concerned. Site plan was prepared. Statement of
witnesses were recorded under section 161 of the Code of Criminal
Procedure, 1973 (hereinafter, “Cr.PC“). Relevant record was
collected. Final report under section 173 CrPC, was prepared against
the above named Accused persons namely Devinder, Shashi Kumar
and Kamal @ Komal and charge-sheet was presented in the court u/s
33/52, Delhi Excise Act on 17.10.2022. It is pertinent here to mention
that accused Kamal @ Komal was discharged vide order dated
15.12.2023 as no prima facie offence was made out against him.
3. On the appearance of accused, a copy of chargesheet was
supplied to them in terms of section 207 of CrPC. On finding a prima
facie case against the Accused, charge under Section 33/38/52 Delhi
Excise Act was framed against the both Accused Devinder S/o Sh.
Ramkhiladi and Shashi Kumar S/o Jarman Singh on 22.10.2022 for
which the Accused pleaded not guilty and claimed trial.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:32:35
FIR No. 444/2020 State vs. Devender Page 2 of 27
+0530
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 33/38/52 Delhi Excise Act,
prosecution led the following documentary and oral evidence:
5. PW-1-Statement of Retd SI Kulbir, deposed that on 26.11.2020
he was posted as SI at PS Sarita Vihar. He alongwith Ct Mahesh was
patrolling in the area of Aali Vihar Jungle near metro depot at about
10:00 AM. When they were patrolling in that area, secret informer
told them that two persons named Devender and Shashi were
carrying illicit liquor in a silver colour car bearing registration
number DL2CAG8171. He also told them that they are going to take
the route of jungle and these persons are both Brothers-in-law (jija)
of Komal Sansi. Upon receiving this information he told Ct Mahesh
and formed a raiding party. He requested 3-4 public persons to join
the raiding team. However, none joined after citing their genuine
reasons and no notice could be served upon them. Meanwhile two
police officials came on the spot whose names were Ct Raj Kumar
and Ct Pradeep. They told him that they also had the information
about the illicit liquor being carried by the two named persons i.e.
Devender and Shashi in a car bearing registration number
DL2CAG8171. At about 10:30 AM we barricaded the spot. In some
time one silver coloured car came at a very high speed from the side
of Peer Baba. Secret informer pointed out towards the car that this
being the same car in which the illicit liquor was carried. He with the
help of other staff members signaled the said car to stop. However,
the accused persons, instead of stopping the car, tried to reverse it but
due to this the car stopped. Both the accused persons Devender and
Aridaman
singh
cheema
FIR No. 444/2020 State vs. Devender Page 3 of 27 Digitally signed by
Aridaman singh
cheema
Date: 2025.05.31
16:32:39 +0530
Shashi tried to run in different directions but they could not run away.
He alongwith Ct Raj Kumar apprehended accused Devender and Ct
Mahesh and Ct Pradeep apprehended accused Shashi. Shashi was the
one who was driving the car. When they were apprehended they gave
their names and details. They also told them that they supplied illicit
liquor to Komal Sansi and they carried the illicit liquor at the behest
of Komal Sansi Thereafter He checked the boot of the car and found
that they were carrying 34 cartons of illicit liquor. All these cartons
were sealed having label Spiced Country Spirit Masaledar Desi
Sharab a quality product Manufactured by ADS Spirit Pvt. Ltd.
Village-Bhutiyan Distt Jhajjar. Each carton was carrying 50 quarter
bottles labeled as ADS Asli Santra Masaledar Desi Sharab for sale in
Haryana only of 180 ml each. There were total 1700 quarter bottles
of 180 ml each. He took out one quarter bottle from one of the
cartons and rest 49 quarter bottles were kept in the same carton and
this carton was tied with tape and it was kept in a white plastic katta
which was sealed with the seal of KBS. Rest of the 33 cartons were
also taped and they were kept in a plastic katta in pairs and all the 17
kattas carrying two cartons each were sealed with the seal of KBS.
He sealed the sample quarter bottle also with the seal of KBS. He
seized the case property vide seizure memo which is EX-PW1/A. He
filled Form M-29 which is EX-PW1/B. Thereafter He prepared tehrir
which is now EX-PW1/C and handed it over to Ct Mahesh to register
the FIR. Ct. Mahesh went to the PS got the FIR registered and came
back to spot with HC Ombir, original tehrir and copy of FIR. HC
Ombir prepared site plan at his instance which is EX-PW1/D. He
handed over the case property and the documents to HC Ombir. He
Aridaman
singh
cheema
FIR No. 444/2020 State vs. Devender Page 4 of 27 Digitally signed by
Aridaman singh
cheema
Date: 2025.05.31
16:32:46 +0530
handed over the seal to Ct Mahesh. The accused is present in the
court and correctly identified by the witness. He can identify the case
property if shown to him. At this stage, MHCM has produced the
sample case property in unsealed condition. The same is shown to the
witness and correctly identified by the witness. The same is which is
now EX-P1. Rest of the case has been destroyed vide destruction
order dt 14.10.2022 which is EX-P2. Witness has been shown the
photographs of the vehicle used for carrying illicit liquor and
correctly identified by the witness. The photographs are which is EX-
P3 (colly).
In his cross-examination he stated that he had filed a DD entry
while leaving the PS for patrolling. As far as he remember the DD
entry was 29-A. He received the information from secret informer at
about 10:00 AM. He admitted that he did not inform at the PS about
the same due to paucity of time. He also did not dial 100 number
about the same. Ct Raj Kumar and Ct Pradeep from the Excise Dept
came to the spot at about 10:20 AM. He admitted that it was lock
down period. He did not remember whether it was complete lock
down period. It was an isolated place. Only a couple of people were
passing through the spot. The IO HC Ombir came to the spot at about
12:20 PM. The secret informer had left the place right after pointed
out towards the car. He left the spot at about 01:00 PM. He denied the
suggestion that the case property was falsely planted on the accused.
He denied the suggestion that all the paper work was done while
sitting at the PS. He denied the suggestion that the accused person
has been falsely implicated in the present case. He denied the
Digitally
signed by
Aridaman
Aridaman singh
FIR No. 444/2020 State vs. Devender Page 5 of 27 singh
cheema
cheema
Date:
2025.05.31
16:32:49
+0530
suggestion that he never visited the spot. He denied the suggestion
that he was deposing falsely.
6. PW-2 ASI Ombir Singh, deposed that on 26.11.2020 He was
posted as HC at PS Sarita Vihar. Investigation of the present case was
marked to him. Thereafter he alongwith Ct Mahesh went to the spot
i.e. Aali Vihar Jungle, Near backside metro depot, Aali Vihar. There
he met SI Kulbir who handed over the case property and accused
Devender and Shashi alongwith the documents to him. Thereafter he
prepared the site plan which is which is already Ex-PW1/D. He also
recorded the disclosure statement of accused Shashi and Devender
which are EX-PW2/1 and EX-PW2/2. He arrested both the accused
persons after conducting their personal search. Accused Devender
was arrested vide arrest memo which is EX-PW2/3. Accused Shashi
was arrested vide arrest memo which is EX-PW2/4. Thereafter,
accused Devender was searched vide search memo which is EX-
PW2/5. Accused Shashi was searched vide search memo which is
EX-PW2/6. The accused Komal was also called to the spot and he
was given notice U/S 41A CrPC vide notice which is EX-PW2/7. He
recorded the interrogation report of accused Komal which is EX-
PW2/8. Thereafter the accused Komal was bound down vide bound
down notice which is EX-PW2/9. Thereafter the case property was
brought to the PS and deposited with the malkhana. He sent the
accused persons for their medical examination. The accused persons
Devender and Shashi were present in the court and correctly
identified by the witness. The identity of the sample case property is
already established in the testimony of PW-1 which is already Ex-P1. Aridaman
singh
cheema
Digitally signed by
Aridaman singh
FIR No. 444/2020 State vs. Devender Page 6 of 27 cheema
Date: 2025.05.31
16:32:55 +0530
The case property was destroyed vide destruction order dated
14.10.2022. The destruction order is already marked as Ex-P2.
Witness was shown the photographs of the vehicle used in carrying
the illicit liquor and correctly identified by the witness. The
photographs are already Ex-P3 (colly).
In his cross-examination he stated that he was marked the
investigation of the present case and then he went to the spot at
around 12:00 PM. He requested 3-4 public persons to join the
investigation. However, none joined after citing their genuine reasons
and no notice could be served upon them. No videography or
photography of the spot was done at the spot. It was a period of lock
down. No CCTV camera was found installed at the spot. When he
reached the spot, secret informer was not available at the spot.
He denied the suggestion that the case property was falsely
planted on the accused. He denied the suggestion that all the paper
work was done while sitting at the PS. He denied the suggestion that
the accused person has been falsely implicated in the present case. He
denied the suggestion that he never visited the spot. He denied the
suggestion that he was deposing falsely.
7. PW-3-Statement of ASI Mahender, deposed that in the year
2021 during the relevant time. He was posted as HC at PS Sarita
Vihar. Investigation of the present case was marked to him on
25.06.2021. However, due to then ongoing Corona pandemic the
result of Excise Department could not be obtained. Meanwhile he got
transferred from the said PS and He deposited the file to MHC(R)
and the investigation was marked to another police official. Digitally
signed by
Aridaman Aridaman
singh cheema
singh Date:
cheema 2025.05.31
FIR No. 444/2020 State vs. Devender Page 7 of 27 16:32:58
+0530
He was not cross-examined on behalf of accused despite
opportunity given.
8. PW-4-Statement of HC Mahesh, deposed that on 26.11.2020,
he was posted as Constable at PS Sarita Vihar. He alongwith SI
Kulbir was patrolling in the area of Aali Vihar Jungle near metro
depot at about 10:00 AM. When they were patrolling in that area,
secret informer told them that two persons named Devender and
Shashi were carrying illicit liquor in a silver colour car bearing
registration number DL2CAG8171. He also told us that they were
going to take the route of jungle and these persons are both Brothers-
in-law (jija) of Komal Sansi. Upon receiving this information SI
Kulbir told him and formed a raiding party. IO requested 3-4 public
persons to join the raiding team. However, none joined after citing
their genuine reasons and no notice could be served upon them.
Meanwhile two police officials came on the spot whose names were
Ct Raj Kumar and Ct Pradeep. They told them that they also had the
information about the illicit liquor being carried by the two named
persons i.e., Devender and Shashi in a car bearing registration
number DL2CAG8171. At about 10:30 AM they barricaded the spot.
In some time one silver colored car came at a very high speed from
the side of Peer Baba. Secret informer pointed out towards the car
that this being the same car in which the illicit liquor was carried.
They with the help of other staff members signaled the said car to
stop. However, the accused persons, instead of stopping the car, tried
to reverse it but due to this the car stopped. Both the accused persons
Devender and Shashi tried to run in different directions but they
Digitally
FIR No. 444/2020 State vs. Devender Page 8 of 27
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:33:02
+0530
could not run away. IO alongwith Ct Raj Kumar apprehended
accused Devender and Ct Mahesh and Ct Pradeep apprehended
accused Shashi. Shashi was the one who was driving the car. When
they were apprehended they gave their names and details. They also
told them that they supplied illicit liquor to Komal Sansi and they
carried the illicit liquor at the behest of Komal Sansi. Thereafter IO
checked the boot of the car and found that they were carrying 34
cartons of illicit liquor. All these cartons were sealed having label
Spiced Country Spirit Masaledar Desi Sharab a quality product
Manufactured by ADS Spirit Pvt. Ltd. Village-Bhutiyan Distt Jhajjar.
Each carton was carrying 50 quarter bottles labeled as ADS Asli
Santra Masaledar Desi Sharab for sale in Haryana only of 180 ml
each. There were total 1700 quarter bottles of 180 ml each. IO took
out one quarter bottle from one of the cartons and rest 49 quarter
bottles were kept in the same carton and this carton was tied with
tape and it was kept in a white plastic katta which was sealed with the
seal of KBS. Rest of the 33 cartons were also taped and they were
kept in a plastic katta in pairs and all the 17 kattas carrying two
cartons each were sealed with the seal of KBS. IO sealed the sample
quarter bottle also with the seal of KBS. IO seized the case property
vide seizure memo which is already EX-PW1/A. IO filled Form
M-29 which is already EX-PW1/B. Thereafter IO prepared tehrir
which is already EX-PWI/C and handed it over to him to register the
FIR. He went to the PS got the FIR registered and came back to spot
with HC Ombir, original tehrir and copy of FIR. HC Ombir prepared
site plan at the instance of first IO which is already EX-PW1/D. First
IO handed over the case property and the documents to HC Ombir. Digitally
signed by
Aridaman
Aridaman singh
singh cheemaFIR No. 444/2020 State vs. Devender Page 9 of 27 cheema Date:
2025.05.31
16:33:07
+0530
First IO handed over the seal to him. HC Ombir arrested the accused
persons after conducting their personal searches vide arrest memos
and personal search memos already Ex-PW2/3, Ex-PW2/4, Ex-
PW2/5 and Ex-PW2/6. IO also recorded the disclosure statement of
the accused person vide which is already Ex-PW2/1 and Ex-PW2/2.
IO also recorded the interrogation report of accused Komal which is
already Ex-PW2/8. Thereafter IO gave notice U/S 41A CrPC to
accused Komal which is already Ex-PW2/7. He took the accused
persons namely Shashi and Devender to AIIMS Hospital for their
medical examination and thereafter they were brought to the PS and
put in lock up. The accused persons namely Shashi and Devender
were present in the court and correctly identified by the witness.
Witness was shown the photographs of the vehicle used for carrying
illicit liquor and correctly identified by the witness. The photographs
are which is already EX-P3 (colly).
In his cross-examination on behalf of both the accused he
stated that the first IO SI Kulbir had filed a DD entry while leaving
the PS for patrolling. He did not remember the number. IO received
the information from secret informer at about 10:00 AM who came
personally. He admitted that IO did not inform at the PS about the
same due to paucity of time. They reached the spot at about 10:30
AM. Ct Raj Kumar and Ct Pradeep from the Excise Dept came to the
spot at about 10:30 AM. He admitted that it was lock down period.
He did not remember whether it was complete lock down period. It
was an isolated place. Only a couple of people were passing through
the spot. The IO HC Ombir came to the spot at about 12:00 PM. The
secret informer had left the place right after he pointed out towards
Digitally
FIR No. 444/2020 State vs. Devender Page 10 of 27 signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:33:14
+0530
the car. He left the spot at about 01:15 PM. IO requested 1-2 public
persons to join the investigation. However, none joined after citing
their genuine reasons and no notice could be served upon them. No
videography or photography of the spot was done at the spot. He did
not whether there was any CCTV camera installed at the spot. His
statement was recorded at the spot. He took the rukka to PS and
about 11:20 AM and came back at around 12:00 AM. All of us left
the spot at about 01:15 PM. He denied the suggestion that the case
property was falsely planted on the accused. He denied the
suggestion that all the paper work was done while sitting at the PS.
He denied the suggestion that the accused person has been falsely
implicated in the present case. He denied the suggestion that He
never visited the spot. He denied the suggestion that He was
deposing falsely.
9. PW-5 Statement of PW HC Pradeep, deposed that on
26.11.2020, he was posted as Constable at Excise Department Delhi.
On that day, he was on duty alongwith Ct. Rajkumar. They had a
secret information from a secret informer pertaining to the illicit
liquor. Thereafter, he alongwith Ct. Raj Kumar went to the back side
of Sarita Vihar metro in front of Peerbaba where they met with SI
Kulbir and Ct. Mahesh. They shared the information with them. They
also had the same information. At about 10:30 AM, they barricaded
the spot. In some time one silver coloured car came at a very high
speed from the side of Peer Baba. Secret informer pointed out
towards the car that this being the same car in which the illicit liquor
was carried. They with the help of other staff members signaled the
Digitally
signed by
Aridaman
FIR No. 444/2020 State vs. Devender Page 11 of 27 Aridaman
singh
singh
cheema
cheema Date:
2025.05.31
16:33:18
+0530
said car to stop. However, the accused persons, instead of stopping
the car, tried to reverse it but due to this the car stopped. Both the
accused persons Devender and Shashi tried to run in different
directions but they could not run away. IO alongwith Ct Raj Kumar
apprehended accused Devender and Ct Mahesh and He apprehended
accused Shashi. Shashi was the one who was driving the car. When
they were apprehended they gave their names and details. They also
told them that they supplied illicit liquor to Komal Sansi and they
carried the illicit liquor at the behest of Komal Sansi. Thereafter, IO
checked the boot of the car and found that they were carrying 34
cartons of illicit liquor. All these cartons were sealed having label
Spiced Country Spirit Masaledar Desi Sharab a quality product
Manufactured by ADS Spirit Pvt. Ltd. Village-Bhutiyan Distt Jhajjar.
Each carton was carrying 50 quarter bottles labeled as ADS Asli
Santra Masaledar Desi Sharab for sale in Haryana only of 180 ml
each. There were total 1700 quarter bottles of 180 ml each. IO took
out one quarter bottle from one of the cartons and rest 49 quarter
bottles were kept in the same carton and this carton was tied with
tape and it was kept in a white plastic katta which was sealed with the
seal of KBS. Rest of the 33 cartons were also taped and they were
kept in a plastic katta in pairs and all the 17 kattas carrying two
cartons each were sealed with the seal of KBS. IO sealed the sample
quarter bottle also with the seal of KBS. IO seized the case property
vide seizure memo which is already EX-PW1/A. IO filled Form
M-29 which is already EX-PW1/B. Thereafter IO prepared tehrir
which is already EX-PWI/C and handed it over to Ct. Mahesh to
register the FIR. Ct. Mahesh went to the PS got the FIR registered
Digitally
signed by
FIR No. 444/2020 State vs. Devender Page 12 of 27 Aridaman
Aridaman singh
cheema
singh
cheema Date:
2025.05.31
16:33:23
+0530
and came back to spot with HC Ombir, original tehrir and copy of
FIR. HC Ombir prepared site plan at the instance of first IO which is
already EX-PW1/D. First IO handed over the case property and the
documents to HC Ombir. First IO handed over the seal to Ct.
Mahesh. HC Ombir arrested the accused persons after conducting
their personal searches vide arrest memos and personal search
memos already Ex-PW2/3, Ex-PW2/4, Ex-PW2/5 and Ex-PW2/6
respectively. IO also recorded the disclosure statement of the accused
person vide which is already Ex-PW2/1 and Ex-PW2/2. Thereafter
IO gave notice U/S 41A CrPC. The accused persons namely Shashi
and Devender were present in the court and correctly identified by
the witness.
Witness was shown the photographs of the vehicle used for
carrying illicit liquor and correctly identified by the witness. The
photographs are which is already EX-P3 (colly).
In his cross-examination he stated that he and Ct. Rajkumar
met at Dhaula Kuan at about 07:30AM. The secret informer given
information for illicit liquor at Sarita Vihar Metro Station. He gave
message to the senior officer regarding illicit liquor at about
07:40AM. He and Ct. Rajkumar reached at the spot by Santro Car
which belong to Ct. Rajkumar. He did not remmeber the registration
no. vehicle of Ct. Rajkumar. They reached at the spot at 09:30Am. SI
Kulbir and Ct. Mahesh met them near Peerbaba Ali Vihar.
He admitted that it was lock down period. He did not
remember whether it was complete lock down period. It was an
isolated place. Only a couple of people were passing through the
spot. The IO HC Ombir came to the spot at about 12:00 PM. The
Digitally
signed by
Aridaman
Aridaman singh
FIR No. 444/2020 State vs. Devender Page 13 of 27 singh cheema
cheema Date:
2025.05.31
16:33:29
+0530
secret informer had left the place right after he pointed out towards
the car. He left the spot at about 01:15PM. No videography or
photography of the spot was done at the spot. He did not remember
whether there was any CCTV camera installed at the spot. His
statement was recorded at the spot. Ct. Mahesh took the rukka to PS
and about 11:20 AM and came back at around 12:00 PM. He denied
te suggestion that the case property was falsely planted on the
accused. He denied the suggestion that all the paper work was done
while sitting at the PS. He denied the suggestion that the accused
person has been falsely implicated in the present case. He denied the
suggestion that he never visited the spot. He denied the suggestion
that He was deposing falsely.
10. PW-6/ Statement of PW HC Rajkumar, deposed that on that
day, He was on duty alongwith Ct. Pradeep. They had a secret
information from a secret informer pertaining to the illicit liquor.
Thereafter, He alongwith Ct. Pradeep went to the back side of Sarita
Vihar metro in front of Peerbaba where They met with SI Kulbir and
Ct. Mahesh. They shared the information with them. They also had
the same information. At about 10:30 AM they barricaded the spot. In
some time one silver coloured car came at a very high speed from the
side of Peer Baba. Secret informer pointed out towards the car that
this being the same car in which the illicit liquor was carried. They
with the help of other staff members signalled the said car to stop.
However, the accused persons, instead of stopping the car, tried to
reverse it but due to this the car stopped. Both the accused persons
Devender and Shashi tried to run in different directions but they
Aridaman
singh
cheema
FIR No. 444/2020 State vs. Devender Page 14 of 27 Digitally signed by
Aridaman singh
cheema
Date: 2025.05.31
16:33:33 +0530
could not run away. He alongwith IO apprehended accused Devender
and Ct Mahesh and Ct. Pradeep apprehended accused Shashi. Shashi
was the one who was driving the car. When they were apprehended
they gave their names and details. They also told us that they
supplied illicit liquor to Komal Sansi and they carried the illicit
liquor at the behest of Komal Sansi. Thereafter IO checked the boot
of the car and found that they were carrying 34 cartons of illicit
liquor. All these cartons were sealed having label Spiced Country
Spirit Masaledar Desi Sharab a quality product Manufactured by
ADS Spirit Pvt. Ltd. Village-Bhutiyan Distt Jhajjar. Each carton was
carrying 50 quarter bottles labeled as ADS Asli Santra Masaledar
Desi Sharab for sale in Haryana only of 180 ml each. There were
total 1700 quarter bottles of 180 ml each. IO took out one quarter
bottle from one of the cartons and rest 49 quarter bottles were kept in
the same carton and this carton was tied with tape and it was kept in a
white plastic katta which was sealed with the seal of KBS. Rest of the
33 cartons were also taped and they were kept in a plastic katta in
pairs and all the 17 kattas carrying two cartons each were sealed with
the seal of KBS. IO sealed the sample quarter bottle also with the seal
of KBS. IO seized the case property vide seizure memo which is
already EX-PWI/A. IO filled Form M-29 which is already EX-
PW1/B. Thereafter IO prepared tehrir which is already EX-PW1/C
and handed it over to Ct. Mahesh to register the FIR. Ct. Mahesh
went to the PS got the FIR registered and came back to spot with HC
Ombir, original tehrir and copy of FIR. HC Ombir prepared site plan
at the instance of first IO which is already EX-PW1/D. First IO
handed over the case property and the documents to HC Ombir. First
Digitally
signed by
Aridaman
FIR No. 444/2020 State vs. Devender Page 15 of 27 Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:33:37
+0530
IO handed over the seal to Ct. Mahesh. HC Ombir arrested the
accused persons after conducting their personal searches vide arrest
memos and personal search memos already Ex-PW2/3, Ex-PW2/4,
Ex-PW2/5 and Ex-PW2/6 respectively. Thereafter IO gave notice
U/S 41A CrPC. The accused persons namely Shashi and Devender
was present in the court and correctly identified by the witness.
Witness was shown the photographs of the vehicle used for
carrying illicit liquor and correctly identified by the witness. The
photographs are which is already EX-P3 (colly).
In his cross-examination he stated that he and Ct. Pradeep met
at Dhaula Kuan at about 07:30AM. The secret informer given
information for illicit liquor at Sarita Vihar Metro Station. He gave
message to the senior officer regarding illicit liquor at about
07:40AM. He and Ct. Pradeep reached at the spot by Santro Car
which belong to him. The registration no. vehicle of my is
HR26BA7828. They reached at the spot at 09:30Am. SI Kulbir and
Ct. Mahesh met them near Peerbaba Ali Vihar. He admitted that it
was lock down period. He did not remember whether it was complete
lock down period. It was an isolated place. Only a couple of people
were passing through the spot. The IO НС Ombir came to the spot at
about 12:00 PM. The secret informer had left the place right after he
pointed out towards the car. He left the spot at about 12:00PM. No
videography or photography of the spot was done at the spot. His
statement was recorded at the spot. Ct. Mahesh took the rukka to PS
and about 11:15 AM and came back at around 12:00PM. He did not
remember whether there was any CCTV camera installed at the spot.
He denied the suggestion that the case property was falsely planted
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
FIR No. 444/2020 State vs. Devender Page 16 of 27 cheema Date:
2025.05.31
16:33:42
+0530
on the accused. He denied the suggestion that all the paper work was
done while sitting at the PS. He denied the suggestion that the
accused person has been falsely implicated in the present case. He
denied the suggestion that He never visited the spot. He denied the
suggestion that He was deposing falsely
11. PW-7/Statement of ASI Rakesh Kumar, deposed that the
investigation of the present case was marked to him. He had collected
excise result of the samples sent to excise lab. Thereafter, He filed the
chargesheet before the Hon’ble Court.
He was not cross-examined on behalf of both the accused
despite opportunity given.
12. The accused on 15.12.2023 had admitted copy of FIR no.
444/2020 PS Sarita Vihar (Ex.A1), Certificate u/s 65-B of Indian
evidence Act (Ex.A2), endorsement on rukka (Ex.A3), DD No.21A
Dt. 26.11.2020 (Ex.A4), Excise Lab report and Form M (Ex.A5 and
ExA6), accordingly witness cited at serial no.4, 5 and 6 u/s Cr.PC.
were dropped from the list of witnesses.
STATEMENT OF ACCUSED
13. Thereafter, before the start of defence evidence, in order to
allow both accused Devinder S/o Sh. Ramkhiladi and Shashi Kumar
S/o Jarman Singh to personally explain the incriminating
circumstances appearing in evidence against them, the statements of
Accused were recorded without oath on 09.05.2025 under Section
313 CrPC in which they stated that they are innocent, and they have
Digitally
signed by
Aridaman
FIR No. 444/2020 State vs. Devender Page 17 of 27 Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:33:47
+0530
been falsely implicated in the present case. They further stated that
they do not want to lead any defence evidence. Hence, DE was
closed.
ARGUMENTS AND ANALYSIS
14. Learned Assistant Public Prosecutor for the State while
summing up prosecution case, submitted that the accused as well as
the case property have been correctly identified by the witnesses. He
stated that link evidence is also available. He urged that the case has
been proved beyond doubt against the accused and prayed for
conviction of the accused.
15. On the other hand, learned counsel for the accused argued that
the accused has been falsely implicated by the police and nothing
was recovered from his possession. He has stated that prosecution
witnesses have admitted that IO did not serve any notice to public
persons. He has further stated that as per the testimony of PW-1, the
rukka was sent to the police station after the making of seizure memo
then how the FIR no. is mentioned on the seizure memo. He further
pointed out contradictions in the testimony of prosecution witnesses
to argue that the prosecution has failed to prove its case beyond
reasonable shadow of doubts. He prayed for acquittal of the accused.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:33:52
+0530
FIR No. 444/2020 State vs. Devender Page 18 of 27
16. I have carefully gone through all the records at hand and
testimony of the witnesses. After perusal, this court is of the opinion
that the point for determination in the present case is whether on
26.11.2020 at 10:30AM at Aali Vihar Jungle, Back Side Metro
Deport, Sarita Vihar, towards Peer Baba side road, both accused were
found in possession of illicit liquor as mentioned in seizure memo
without having permit of license.
17. As per the prosecution on the fateful day the accused was
found in possession of illicit liquor without any permit or license. In
order to bring home the charge against the accused, the prosecution
was required to prove beyond reasonable doubt the recovery of illicit
liquor from the possession of the accused.
18. Ld. APP for the state has relied upon Section 52 of the Delhi
Excise Act. As per Ld. APP for the state, as soon as the accused was
charged of commission of the offence punishable under Section 33 of
the Delhi Excise Act, a presumption in favour of the prosecution is
raised under Section 52 of the Delhi Excise Act. The said argument
does not find favour with this Court. Section 52 of the Delhi Excise
Act reads as under:
“Presumption as to commission of
offence in certain cases – (1) In
prosecution under Section 33, it shall be
presumed, until the contrary is proved,
that the accused person has committed
the offence punishable under that section Digitallyin respect of any intoxicant, still, utensil,
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:33:56
FIR No. 444/2020 State vs. Devender Page 19 of 27 +0530
implement or apparatus, for the
possession of which he is unable to
account satisfactorily.
(2) Where any animal, vessel, cart or
other vehicle is used in the commission
of an offence under this Act, and is
liable to confiscation, the owner thereof
shall be deemed to be guilty of such
offence and such owner shall be liable to
be proceeded against and punished
accordingly, unless he satisfies the court
that he had exercised due care in the
prevention of the commission of such an
offence”.
19. The words “for the possession of which he is unable to account
satisfactorily” used in Section 52(1) of the Delhi Excise Act
stipulates that as a pre-requisite 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.
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.
Aridaman
singh
cheema
Digitally signed by
Aridaman singh
cheema
Date: 2025.05.31
FIR No. 444/2020 State vs. Devender Page 20 of 27 16:34:01 +0530
20. It is pertinent to mention here that it has been held in case of
Sadhu Singh V/s State of Punjab 1997(3) Crime 55 the Hon’ble
Punjab & Haryana High Court :-
“In a criminal trial, it is for the prosecution
to establish its case beyond all reasonable doubts.
It is for the prosecution to travel the entire
distance from may have to must have. If the
prosecution appears to be improbable or lacks
credibility the benefit of doubt necessarily has to
go to the accused.”
21. At this stage, it is pertinent to point out that, there is not a
single public witness to the recovery of the liquor in the list of
witnesses. The recovery is alleged to have been effected at Aali Vihar
Jungle, Back Side Metro Deport, Sarita Vihar. The place of recovery
as per site plan, clearly located in an area where public persons
would be readily available. Thus, at the place and time of the alleged
recovery of illicit liquor, public persons would in all likelihood have
been present and available or have at least passed by the spot.
22. It is pertinent that accused persons namely Devinder and
Shashi Kumar were correctly identified by PW-1, PW-2, PW-4, PW-5
and PW-6. Interestingly, no independent witness is there to
substantiate the prosecution story.
23. It is not the case of the prosecution that no public person was
present at or near the spot of arrest and recovery. Further, PW-1,
Aridaman
PW-2, PW-4, PW-5 and PW-6 have stated in their cross-examination, singh
cheema
Digitally signed by
Aridaman singh
cheema
FIR No. 444/2020 State vs. Devender Page 21 of 27 Date: 2025.05.31
16:34:05 +0530
that there were public persons at that time but no one joined the
investigation. Further, there is nothing on record to show that IO had
served any notice under Section 160 Cr.PC. upon the persons who
refused to join the investigation. Thus, the prosecution has failed to
prove that any serious effort was made by IO to join public witnesses
in the proceedings. 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.
24. This Court is, however, conscious that the prosecution case
cannot be thrown out or doubted on the sole ground of non-joining of
public witnesses as public witnesses keep themselves away from the
Court unless it is inevitable, as has been held in Appabhai and
another v. State of Gujarat, AIR 1988 SC 696. However, in the
present case, it is not only the absence of public witnesses which
raises a doubt on the prosecution but there are other circumstances
too, as discussed hereinafter, which raise suspicion over the
prosecution version.
25. Further, as per the testimonies of the prosecution witnesses, the
sample of liquor and case property were sealed with the seal of KBS.
Further, the seal in the present case was not handed over to any
Aridaman
singh
cheema
Digitally signed by
Aridaman singh
FIR No. 444/2020 State vs. Devender Page 22 of 27 cheema
Date: 2025.05.31
16:34:10 +0530
independent witness. Thus, the possibility that the case property may
have been tampered with cannot be ruled out.
26. Moving ahead, PW-1 had deposed that seizure memo
Ex.PW-1/A was prepared before the rukka was sent to the police
station for registration of the FIR in his examination in chief. The
FIR was, therefore, admittedly registered after the preparation of
seizure memo Ex.PW-1/A. Accordingly, it follows that the number of
the FIR would have come to the knowledge of the SI Kulbir Singh
only after a copy of the FIR was brought to the spot by Ct. Mahesh.
Thus, ordinarily, the FIR number should not find mention in the
seizure memo, which came into existence before registration of the
FIR. However, interestingly, the seizure memo Ex. PW-1/A bears the
FIR number and case details. The same indicates that FIR number
was mentioned on the said document while preparing the same.
27. Reliance here is placed on the decision of the Hon’ble High
Court of in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J.
127 wherein it was observed in as under:
“… 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 Aridaman
singh
cheema
Digitally signed by
FIR No. 444/2020 State vs. Devender Page 23 of 27 Aridaman singh
cheema
Date: 2025.05.31
16:34:15 +0530
which the FIR, PW11/G was recorded. The F.I.R. is numbered
as 36, a copy of which was sent to the I.O. after its
registration. It comes to that the number of F.I.R. 36 came to
the knowledge of the I.O. after a copy of it was delivered to
him at the spot by a constable. In the normal circumstances,
the F.I.R. No. should not find mention in the recovery memo
or the sketch plan which had come into existence before the
registration of the case. However, from the perusal of the
recovery memo, I find that the FIR is mentioned whereas the
sketch plan does not show the number of the FIR. It is not
explained as to how and under what circumstances the
recovery memo came to bear the F.I.R. No. which had already
come into existence before the registration of the case. These
are few of the circumstances which create a doubt, in my
mind, about the genuineness of the weapon of offence alleged
to have been recovered from the accused.”
28. Perusal of record shows that the Excise Result, Ex.A5, was
obtained qua 1 sample bottle (180 ml) only, whereby the presence of
alcohol in the said sample bottles was confirmed. The presence of
alcohol in the remaining allegedly recovered liquor bottles has not
been thus, proved by the prosecution. Now, since the State has only
found 1 bottle (180 ml of liquid), allegedly recovered from the
accused containing alcohol, offence under section 33 of the Delhi
Excise Act, 2009 cannot be said to have been made out as the same
falls within the maximum permissible limit specified under Rule 20
of the Delhi Excise Rules, 2010. At this juncture, the ruling of the Digitally
signed by
Aridaman
Aridaman singh
FIR No. 444/2020 State vs. Devender Page 24 of 27 singh cheema
cheema Date:
2025.05.31
16:34:19
+0530
Hon’ble High Court of Karnataka, in its judgment titled as Nagesh
S/O Ningaiah vs The State Of Karnataka, Criminal Revision Petition
No.772 /2009, decided on 31 January, 2014 , maybe adverted to,
wherein, while acquitting the accused of a similar offence, following
observations were made:
“It is seen from the mahazar that out of
49,440 Whisky bottles, 15 Whisky bottles
of 180 ml. each were sent for Chemical
Analysis, and it is opined that there was
presence of Ethyl Alcohol in all the bottles
that were sent for Chemical Examination, fit
for consumption. Thus, the total quantity
sent for Chemical Analysis is less than
permitted quantity under law. We do not
know the contents of the other bottles seized
under a Panchanama. There is no evidence
to show that all other bottles also contained
alcohol. When the quantity found in the
bottle sent for Chemical Examination is less
than permitted limit and when there is no
evidence regarding the contents of all other
bottles seized under Panchanama, it cannot
be said that the accused was in possession
of the illicit liquor without pass or permit
more than permitted quantity so as to
constitute an offence. The unreported
decision of this Court in
W.P.No.17991/2011 (Excise), dated
28.02.2012, relied upon by the learned
counsel for the petitioner is rightly
applicable to the facts of this case………In
this case also the prosecution has failed to
establish that the accused was in possession
of liquor more than permitted quantity.”
29. In the instant case as well, no explanation has been furnished
on record as to how the FIR number and case details have appeared Aridaman
singh
cheema
Digitally signed by
FIR No. 444/2020 State vs. Devender Page 25 of 27 Aridaman singh
cheema
Date: 2025.05.31
16:34:23 +0530
on the seizure memo Ex.PW1/A. The same leads to inference that
either the said documents were prepared later or that the FIR had
been registered earlier in point of time. In both the aforesaid cases a
dent is created and unexplained holes are left in the prosecution story,
the benefit of which must accrue to the accused.
30. The facts that no independent witness was cited or examined,
the appearance of FIR number and case particulars on the seizure
memo Ex.PW1/A has not been explained and the amount of proved
quantity of alcohol is 180ML (1 sample of 180ML) which is not an
illegal amount and contradictions in the testimony of prosecution
witnesses and there is no public witness present, when kept in
juxtaposition to each other, cast a cloud of suspicion over the
prosecution version. In view of the aforesaid, the possibility of false
implication of the accused in the present case cannot be ruled out.
31. It is trite in criminal jurisprudence that the prosecution is
under an obligation to prove its case against the accused beyond
reasonable doubt. The standard of proof to be adopted in criminal
cases is not merely of preponderance of probabilities but proof
beyond reasonable doubt on the basis of cogent, convincing and
reliable evidence. It is also well settled that in case of doubt, the
benefit must necessarily be allowed to the accused.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2025.05.31
16:34:28
+0530
FIR No. 444/2020 State vs. Devender Page 26 of 27
32. Thus, in view of the foregoing analysis, this Court is of the
considered opinion that the benefit of doubt ought to be granted to
the accused, who are entitled to be exonerated of the charges against
the accused in the present case. The accused Devinder S/o Sh.
Ramkhiladi and Shashi Kumar S/o Jarman Singh are hereby
acquitted of the offence punishable under Section 33 Delhi Excise
Act.
Aridaman Digitally signed
by Aridaman
Announced in open court on 31.05.2025 singh singh cheema
Date: 2025.05.31
cheema 16:34:33 +0530
(Aridaman Singh Cheema)
JMFC-05/SE District/Saket Court,
New Delhi/31.05.2025
Note: This judgment contains 27 pages and each page bears the
Digitally signed
digital signature of the undersigned. Aridaman by Aridaman
singh cheema
singh Date:
cheema 2025.05.31
16:34:37
+0530(Aridaman Singh Cheema)
JMFC-05/SE District/Saket Court,
New Delhi/31.05.2025FIR No. 444/2020 State vs. Devender Page 27 of 27