Delhi District Court
State vs Dharampal on 10 March, 2025
Dated: 10.03.2025
IN THE COURT OF MS. SANYA DALAL
JUDICIAL MAGISTRATE FIRST CLASS-I (N/W)
ROHINI COURTS, DELHI
State Vs. Dharampal @ Lamba
Case No. 315/2018
FIR No. 690/2017
PS: Sultanpuri
U/s : 33/38 Delhi Excise Act
JUDGMENT
ID number of the case : DLNW020011162018
Date of commission of offence : 15.09.2017
Date of institution of the case : 18.01.2018
Name of the complainant : Ct. Karampal, No. 2754/OD
Name of accused and address : Dharampal @ Lambu S/o Sh.
Ramu R/o Jhuggi No. 18, C-7
Block, Sultanpuri, 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 : 10.03.2025
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Briefly stated, case of the prosecution is that on 15.09.2017
at about 08:45 pm in front of Jhuggi No. 18, C-7 Block,
Sultanpuri, Delhi, the accused was allegedly found inFIR No. 690/2017 State Vs. Dharampal @ Lambu Digitally
signed by
SANYA
Page No. 1 of 13
SANYA DALAL
DALAL Date:
2025.03.10
15:33:49
+0530
Dated: 10.03.2025possession of five gatta patties containing 50 quarter bottles
of illicit liquor as per seizure memo Mark A. Thus, he had
committed the offences U/s 33/38 Delhi Excise Act.
2. Upon completion of investigation charge sheet u/s 173
Cr.P.C. was filed and the accused was consequently
summoned. Charge u/s 33/38 Delhi Excise Act was framed
against the accused on 26.03.2021 to which he pleaded not
guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined
03 witnesses as follows:
i. PW-1 HC Karampal have deposed that on 14.09.2017, he
was on patrolling in the area of C-Block, Sultanpuri,
Delhi and when he reached in front of Jhuggi No. 18, C-7
Block, Sultanpuri, Delhi, he saw one person who was
sitting with gatta patties. Upon seeing him in uniform, the
accused tried to flee away from the spot. On suspicion, he
stopped the accused and found illicit liquor in the same.
The information was given to the PS and IO HC Amit
reached at the spot. IO had requested 4-5 public persons
to join the investigation but none agreed and left the spot
without disclosing their names and addresses. Thereafter,
IO had opened the katta and found 50 quarter bottles in
the same. IO took out one sample from the said katta and
the same was sealed after taking of the sample with the
seal of AD. Seal after used was handed over to him. IO
had filed Form M-29 at the spot. IO recorded his
statement Ex. PW1/A and prepared the tehrir and the
same was handed over to him for registration of FIR.
FIR No. 690/2017 State Vs. Dharampal @ Lambu Digitally
Page No. 2 of 13
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:33:56
+0530
Dated: 10.03.2025After registration of FIR he came back at the spot and
handed over the copy of FIR and original rukka to the IO.
Thereafter, IO prepared the site plan vide Ex. PW1/B and
seizure memo vide Ex. PW1/C. Thereafter, IO arrested
the accused vide arrest memo Ex. PW1/D and conducted
personal search vide personal search memo Ex. PW1/E.
Further, IO recorded the disclosure statement of the
accused vide Ex. PW1/F. The case property was
deposited in the Malkhana. The accused was medically
examined and put behind the bar. The witness correctly
identified the accused and the case property.
During cross-examination, the witness has
deposed that before the registration of FIR, the IO had
filed Form M-29, prepared the tehrir and deposed that no
handing over memo was prepared.
ii. PW-2 HC Amit has deposed that on 15.09.2017, after
receiving the DD No. 30A, he reached at the spot i.e. in
front of Jhuggi No. 18, C-7 Block, Sultanpuri, Delhi
where he met with Ct. Karampal who handed over the
custody of accused alongwith recovered illicit liquor. He
had requested 4-5 public persons to join the investigation
but none agreed and left the spot without disclosing their
names and addresses. Thereafter, he opened the katta and
found 50 quarter bottles in the same. He took out one
sample from the said katta and the same was sealed after
taking of the sample with the seal of AD. Seal after used
was handed over to Ct. Karampal. He filed Form M-29 at
the spot. Thereafter, he recorded the statement of Ct.
FIR No. 690/2017 State Vs. Dharampal @ Lambu Page No. 3 of 13
Digitally
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:34:06
+0530
Dated: 10.03.2025Karampal which is already Ex. PW1/A and prepared the
tehrir and the same was handed over to Ct. Karampal for
registration of FIR. After registration of FIR Ct.
Karampal came back at the spot and handed over the
copy of FIR and original rukka to him. Thereafter, he
prepared the site plan vide memo already Ex. PW1/B and
seizure memo vide memo already Ex. PW1/C. Thereafter,
he arrested the accused vide arrest memo aleady Ex.
PW1/D and conducted personal search vide personal
search memo already Ex. PW1/E. Further, he recorded
the disclosure statement of the accused vide memo
already Ex.PW1/F. The case property was deposited in
the Malkhana. The accused was medically examined and
put behind the bar. The witness correctly identified the
accused and the case property.
During cross-examination, the witness has deposed
that before the registration of FIR, the he had filed Form
M-29, prepared the tehrir and deposed that no handing
over memo was prepared.
iii. PW-3 HC Sumit was the MHCM who has proved the
entry vide No. 4944 which is Ex. PW3/A. He further
despoed that he had deposited the sample to the Excise
Lab on 27.09.2017 vide RC No. 302/21/17 which is Ex.
PW3/B.
4. The accused had admitted the genuineness of DD No. 30A,
present FIR, Certificate under Section 65B of Indian
Evidence Act, Endorsement on Rukka and Chemical
Examiner Report, which were Ex. PX1, Ex. PX2, Ex. PX3,
FIR No. 690/2017 State Vs. Dharampal @ Lambu Digitally
Page No. 4 of 13
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:34:12
+0530
Dated: 10.03.2025Ex. PX4 and Ex. PX5 respectively. Consequently, the
witnesses were dropped accordingly.
5. Prosecution evidence was closed. Statement of accused was
recorded u/s 351 BNSS on 14.08.2024 wherein all the
incriminating evidence was put to the accused, to which
he refused the allegations and stated that he has been falsely
implicated in this case and recovery of case property has
been falsely implanted upon her. Further, the accused
opted not to lead defence evidence.
6. Final Arguments were heard. Case file perused.
7. It is argued by Ld. APP for the state that on the basis of the
entire evidence brought on record, the guilt of the accused
has been established beyond reasonable doubt 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.
8. Per contra, it is argued by the Ld. Counsel for the accused
that accused is completely innocent and recovery of case
property has been falsely planted upon him. It is further
submitted by Ld. Counsel that non joinder of public witness
despite availability casts shadow of doubt on prosecution
story. It is further argued by Ld. Counsel for the accused that
tampering with the contents of the sealed parcel cannot be
ruled out as seal was not handed to the independent witness.
At the end, it is submitted that the prosecution has
miserably failed to prove its case beyond reasonable
doubt and therefore, the accused is liable to be acquitted of
FIR No. 690/2017 State Vs. Dharampal @ Lambu Page No. 5 of 13
Digitally
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:34:17
+0530
Dated: 10.03.2025the alleged offence.
9. I have heard the rival submissions and have also carefully
gone through the entire material available on record and
evidence led on behalf of the prosecution.
10. 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.
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.
“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
intoxicant, 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
Digitally
signed by
FIR No. 690/2017 State Vs. Dharampal @ Lambu SANYA SANYA
DALAL Page No. 6 of 13
DALAL Date:
2025.03.10
15:34:23
+0530
Dated: 10.03.2025thousand rupees but which may extend to one lakh
rupees.”
12. Before a person can be held liable for commission of any
offence, the prosecution has to establish the guilt beyond
reasonable doubt and for the same, the alleged recovery in
the present case is to be proved beyond reasonable doubt.
13. It is apposite to mention that 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:
“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 in respect
of any intoxicant, still, utensil, 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.”
14. 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
FIR No. 690/2017 State Vs. Dharampal @ Lambu Digitally Page No. 7 of 13
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:34:31
+0530
Dated: 10.03.2025words “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 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.
15. 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.
16. 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.
17. 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
FIR No. 690/2017 State Vs. Dharampal @ Lambu DigitallyPage No. 8 of 13
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:34:45
+0530
Dated: 10.03.2025by 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 can
be taken 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.
18. 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 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.”
19. In the instant case, the recovery was effected from the
accused at the busy spot. Hence, it could not be said that the
public witnesses were not present at the spot at the time of
FIR No. 690/2017 State Vs. Dharampal @ Lambu Digitally
signed by
Page No. 9 of 13
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:35:03
+0530
Dated: 10.03.2025recovery. In fact, as per the testimonies of prosecution
witnesses, public persons were present at the spot at the
time of recovery. However, surprisingly, all of the PWs did
not explain the reason as to why public witnesses were not
examined during the course of investigation. They only
stated that the public persons refused to join the
investigation. This reason given by the PWs is neither
sufficient nor plausible. Neither the details of those public
persons were 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.
Therefore, it is clear that sincere efforts were not made to
join independent witnesses despite their availability which
causes a serious dent in the story of the prosecution and all
these facts makes the alleged recovery very doubtful.
20. Further, the prosecution did not even bring on record
necessary DD entries to prove departure/arrival of the police
officials from/at the police station. 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, whetherFIR No. 690/2017 State Vs. Dharampal @ Lambu DigitallyPage No. 10 of 13
signed by
SANYA
SANYA DALAL
DALAL Date:
2025.03.10
15:35:12
+0530
Dated: 10.03.2025posted 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.
21. 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 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.”
22. In present case, the seal was neither handed over to an
independent witness. No explanation has come on record as
to why seal handing over memo was not made or seal was
not handed over to an independent witness. In these
circumstances, the possibility of tampering of case property
cannot be ruled out. Reliance is placed on Ramji Singh V/s
State of Haryana 2007 (3) R.C.R. (Criminal) 452, the
Hon’ble Punjab and Haryana High Court held that
FIR No. 690/2017 State Vs. Dharampal @ Lambu SANYAPage No. 11 of 13
DALAL
Digitally signed
by SANYA DALAL
Date: 2025.03.10
15:35:18 +0530
Dated: 10.03.2025
“7. The very purpose of giving seal to an
independent person is to avoid tampering of the case
property. It is well settled that till the case property
is not dispatched to the forensic science laboratory,
the seal should not be available to the prosecuting
agency and in the absence of such a safeguard the
possibility of seal, contraband and the samples being
tampered with cannot be ruled out”.
23. Therefore, in view of the above, this creates further doubts
in the case of prosecution as to whether the case property
allegedly recovered from the accused has not been tampered
with.
24. Perusal of record shows that prosecution witnesses have
deposed that Form M-29 was prepared prior to the
registration of the FIR, accordingly, FIR number could not
have surfaced on that Form M-29, however, the Form M-29
bears the FIR number. This gives rise to two inferences that
either the FIR was recorded prior to the alleged recovery of
the case property or number of the said FIR was inserted in
the document 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 the recovery
of the case property in the manner alleged. That being so,
benefit arising out of such a situation must necessarily go to
the accused. Reference be made to the judgment of Hon’ble
Delhi High Court in the case of Giri Raj v. State, 83 (2000)
DLT 201.
25. 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
SANYA
FIR No. 690/2017 State Vs. Dharampal @ Lambu Page No. 12 of 13
DALAL
Digitally signed
by SANYA DALAL
Date: 2025.03.10
15:35:24 +0530
Dated: 10.03.2025
links. In case where the prosecution has failed to prove all
the links, the benefit of doubt has to be given to the accused.
As such the accused deserves acquittal in the present case.
26. Therefore, in view of the above discussions and findings, I
find that the prosecution has failed to prove the guilt of the
accused in the present case beyond reasonable doubt. Hence,
the accused Dharampal @ Lambu S/o Sh. Ramu is acquitted
for the offences u/s 33/38 of Delhi Excise Act.
27. 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.
28. File be consigned to Record Room after due compliance.
Digitally
signed by
SANYA SANYA DALAL
Announced and dictated in DALAL
Date:
2025.03.10
the open court on this day 15:35:31
+0530
i.e. 10th March, 2025
(Be uploaded forthwith) (SANYA DALAL)
JMFC-01/North-West District
Rohini Court, Delhi
10.03.2025
FIR No. 690/2017 State Vs. Dharampal @ Lambu Page No. 13 of 13