Delhi District Court
State vs Shankar on 2 July, 2025
Dated: 02.07.2025
IN THE COURT OF SH. ABHINAV SINGH
JUDICIAL MAGISTRATE FIRST CLASS-I (N/W)
ROHINI COURTS, DELHI
State Vs. Shankar
Case No. 2765/2020
FIR No. 56/2020
PS: Sultanpuri
U/s : 33/38 Delhi Excise Act
JUDGMENT
ID number of the case : DLNW020111952020
Date of commission of offence : 15.01.2020
Date of institution of the case : 18.09.2020
Name of the complainant : Ct. Sandeep, No. 1734/OD
Name of accused and address : S/o Shankar Sh. Govind R/o
H. No. L-54A, Krishan Vihar,
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 : 02.07.2025
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Briefly stated, case of the prosecution is that on
15.01.2020 at about 08:30 pm at the corner of street No.FIR No. 56/2020 State Vs. Shankar Page No. 1 of 14
Dated: 02.07.2025L-54A, Krishan Vihar, Delhi, the accused was allegedly
found in possession illicit liquor as per seizure memo Ex.
PW4/C. 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 07.06.2022 to which he
pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution
examined 05 witnesses as follows:
i. PW-1 HC Ashok Kumar has deposed that on
15.01.2020, he was posted at PS Sultanpuri and was
working as Duty Officer. He deposed that his duty
hours were from 04:00 pm to 12 mid night. He deposed
that on 08:46 pm, he had received a call from Ct.
Sandeep regarding the apprehension of one person who
was having illicit liquor and also requested to send the
IO. He deposed that he made the DD entry bearing no.
DD No. 54A which is Ex. PW1/A. He deposed that on
the same day at about 10:25 pm, he received the rukka
Ct. Sandeep sent by PSI Mohit and got the present FIR
registered. The printout of FIR is Ex. PW1/B and made
endorsement on the same which is Ex. PW1/C.
During cross-examination, the witness denied
the suggestion that the FIR was anti-date and anti time.
ii. PW-2 HC Rakesh has proved the Register No. 19 at
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Dated: 02.07.2025
column no. 4 vide Entry No. 4198/20 which is
Ex.PW2/A and RC No. 49/21/20 which is Ex. PW2/B.
iii. PW-3 HC Deep Chand has deposed that on
11.02.2020, he was posted as Constable at PS
Sultanpuri. He deposed that on the said date, upon the
direction of the IO, he had deposited the sample of the
case property in the Excise Lab vide RC No. 49/21/20
and after depositing the same, he had handed over the
receiving copy to the MHCM.
iv. PW-4 HC Sandeep has deposed that on 15.01.2020, he
was on patrolling duty in the area of PS Sultanpuri and
when he reached at the corner of gali, L-54/A, Krishan
Vihar, Sultanpuri, Delhi, he saw one person who was
having one white plastic katta on his head. On seeing
him in the uniform, the accused tried to flee away from
the spot. On suspicion, he stopped the accused and
checked the katta wherein he found illicit liquor in the
same. He gave information to the Police Station. After
sometime, PSI Mohit reached at the spot. He handed
over the custody of the accused alongwith recovered
illicit liquor to the IO. IO asked 4-5 public persons to
join the investigation but none agreed and left the spot
without disclosing their names and addresses.
Thereafter, IO took out sample from the said recovered
illicit liquor and sealed the same with the seal of MB.
Seal after use was handed over to him. IO filed Form
M-29. Thereafter, IO recorded his statement Ex.
PW4/A and prepared the tehrir. The tehrir was handed
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Dated: 02.07.2025
over to him for registration of FIR. After registration of
FIR, he came back at the spot and handed over the copy
of FIR alongwith original rukka to the IO. IO prepared
the site plan Ex. PW4/B, seizure memo Ex. PW4/C.
Thereafter, IO arrested the accused vide arrest memo
Ex. PW4/D and conducted the personal search memo
vide personal search memo Ex. PW4/E. IO recorded the
disclosure statement of the accused which is Ex.
PW4/F. The accused was sent for medical examination
and then case property was deposited in Malkhana. The
witness correctly identified the accused and the case
property Ex. P1 and Ex. P2.
During cross-examination, the witness
deposed that before the registration of FIR, IO had
filled Form M-29, prepared the site plan. He deposed
that public persons were present at the spot, however,
no legal action or notice was served upon the them.
v. PW-5 SI Mohit has deposed that on 15.01.2020, he was
posted as PSI at PS Sultanpuri. He deposed that on that
day, after receiving DD No. 54A, he reached at L-54A,
Krishan Vihar, Delhi where he met with Ct. Sandeep
who handed over the custody of the accused and the
case property to him. 4-5 public persons were asked to
join the investigation but none agreed and left the spot
without disclosing their names and addresses.
Thereafter, he took out sample from the said recovered
illicit liquor and sealed the same with the seal of MB.
Seal after use was handed over to Ct. Sandeep. He filed
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Dated: 02.07.2025
Form M-29. He recorded the statement of Ct. Sandeep
which is already Ex. PW4/A and prepared the tehrir Ex.
PW5/A. The tehrir was handed over Ct. Sandeep for
registration of FIR. After registration of FIR, Ct.
Sandeep came back at the spot and handed over the
copy of FIR and original rukka to him. He prepared the
site plan which is already Ex. PW4/B, seizure memo
EX. PW4/C. Thereafter, he arrested the accused vide
arrest memo which is already Ex. PW4/D and
conducted the personal search of the accused vide
personal search memo which is already Ex. PW4/E. He
recorded the disclosure statement of the accused which
is already Ex.PW4/F. The case property was deposited
in Malkhana. The witness correctly identified the
accused and the case property Ex. P1 and Ex. P2.
During cross-examination, the witness
deposed that before the registration of FIR, he had
filled Form M-29, prepared the site plan. He deposed
that public persons were present at the spot, however,
no legal action or notice was served upon the them.
4. The accused had admitted the genuineness of Chemical
Examiner Report which is Ex. PX1. Consequently, the
witnesses were dropped accordingly.
5. Prosecution evidence was closed. Statement of accused
was recorded u/s 351 BNSS on 28.03.2025 wherein all the
incriminating evidence was put to the accused, to which
he refused the allegations and stated that he has been
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Dated: 02.07.2025
falsely implicated in this case and recovery of case
property has been falsely implanted upon him. 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 should 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 the alleged offence.
Applicable Law and its application to present facts
9. Section 33 of The Delhi Excise Act, 2009 provides penalty
for unlawful import, export, transport, manufacture,
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Dated: 02.07.2025
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
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 thousand rupees but
which may extend to one lakh rupees.”
10.Before a person can be held liable for commission of any
offence, the prosecution has to establish his guilt beyond
reasonable doubt.
11.I shall now delve into the appraisal of material available on
record.
12. Possibility of tampering: The testimonies of PW4 and
PW5 reflect that the case property and the remaining case
property was sealed with the seal of MB, however, there is
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Dated: 02.07.2025
no handing over memo of the seal to suggest that the seal
used for the seizure of the case property remained in
possession of any independent person. PW4 and PW5
correctly identified the case property and same was Ex.
P-1 and Ex. P2 and at the time of production of case
property, the same was bearing the seal of RK. There is no
document on record which could suggest that seal of RK
belongs to whom and the same was appended at what point
of time.
13.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 PW4 was on
patrolling duty on the relevant point of time i.e. on
15.01.2020. Further, there is no departure entry to the said
effect.
At this stage, reference can be taken from the
provision enshrined in 22 rule 49 of the Punjab Police
Rules, which is reproduced as under;
“Chapter 22 rule 49 Matters to be entered in Register
no. II. The following matters shall amongst others,
be entered:
(c) The hour of arrival and departure on duty at or
from a police station of all enrolled police officers of
whatever rank, whether posted at the police station
or elsewhere, with a statement of the nature of their
duty. This entry shall be made immediately on
arrival or prior to the departure of the officer
concerned and shall be attested by the latter
personally by signature or seal.
Note: The term Police Station will include all places
such as Police Lines and Police Posts where Register
No. II is maintained.
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Dated: 02.07.2025
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.”
In the instant case this provision has not been
complied by the concerned Police Witness/PW4. The
relevant entries regarding the arrival and departure of the
police officials have not been proved.
14.Non Joining of any independent public witnesses: As per
the version of PW4 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.
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Dated: 02.07.2025
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.”
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
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Dated: 02.07.2025
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
statement of a police officer can be relied upon and
even form the basis of conviction when it is reliable,
trustworthy and preferably corroborated by other
evidence on record.”
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 byFIR No. 56/2020 State Vs. Shankar Page No. 11 of 14
Dated: 02.07.2025the 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.
15.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.
As 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. ……
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Dated: 02.07.2025Once a doubt is created in the preservation of the
sample the benefit of the same should go to the
accused.”
16.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 that
the sample alongwith the photographs 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.
17.Doubtful Form M-29
As per PW4, the IO firstly had prepared Form M-29
and the FIR was registered later on, however, the Form
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Dated: 02.07.2025
M-29 is bearing the FIR No., thus suggesting the ante-
time/ dated FIR, eventually creating suspicion upon the
case of the prosecution.
18.It is true that evidence is to be weighed and not counted
but in this case whatever evidence has been produced by
the prosecution is not sufficient to fortify the edifice of the
prosecution’s case and the prosecution fails to prove all
the links. In case where the prosecution has failed to
prove all the links, the benefit of doubt has to be given to
the accused. As such the accused deserves acquittal in the
present case.
19.In view of the above, it can be safely concluded that
prosecution has miserably failed to establish beyond
reasonable doubt the case against the accused. Hence, the
benefit of doubt be given to the accused. Since the
recovery of illicit liquor from the possession of accused
could not be established, accused namely Shankar S/o Sh.
Govind is acquitted for the offences u/s 33/38 of Delhi
Excise Act.
20.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.
21.File be consigned to Record Room after due compliance.
Announced and dictated in
the open court on this day
i.e. 02nd July, 2025 (ABHINAV SINGH)
(Be uploaded forthwith) JMFC-01/North-West District
Rohini Court, Delhi
02.07.2025
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