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Delhi District Court
State vs Vikas@Shailender on 19 April, 2025
1
IN THE COURT OF SH. SAURABH GOYAL,
JUDICIAL MAGISTRATE FIRST CLASS01, DWARKA COURTS, DELHI
State Vs. : Vikash @ Shailender
FIR No : 267/2023
U/s : 33 Delhi Excise Act
P.S. : PALAM VILLAGE
1. Criminal Case No. : 3140/2024
2. Date of commission of offence : 02.09.2024
3. Date of institution of the case : 22.03.2024
4. Name of the complainant : State
5. Name of accused & parentage : Vikash @ Shailender
S/o Sh. Karam Singh
6. Offence complained or proved : Section 33 Delhi Excise Act
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : 08.04.2025
9. Final order : Acquitted
10. Date of final order : 19.04.2025
JUDGMENT
1. The accused Vikash @ Shailender is facing trial for offence U/S 33 Delhi
Excise Act with the allegations that on 28.04.2023 at about 2:45 PM at Mangla Puri,
Phase II near DIU office, DDA Park, New Delhi within jurisdiction of PS Palam
Village, the accused was found in possession of one plastic sack containing total 136
quarters bottles of illicit liquor having label MOTTA FRESH MASALE DAR DESI
SHARAB for sale in Haryana only (180 ML each), 37 quarter bottles of Takatak (180
ML each) for sale in Haryana, 12 quarter of white and blue Saleep Whisky sale in
Delhi (180 ML each), 12 quarter of Denis Special Whisky sale in Delhi (180 ML
each) without any permit or license. The criminal law was set into motion by
registration of FIR against the accused person and investigation into the case began.
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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After completion of the investigation, the present chargesheet was filed for
conducting trial of the accused person for the alleged offence.
2. After taking cognizance of the offence, the copies of chargesheet was supplied
to the accused person in compliance of section 207 Cr.P.C. The arguments on charges
were heard and charge for offence U/S 33 Delhi Excise Act was framed against
accused Vikash @ Shailender on 21.05.2025. The accused person pleaded not guilty
and claimed trial. Thereafter, prosecution evidence was led.
3. In order to prove allegations against accused, prosecution has examined three
prosecution witnesses.
4. The proceedings U/S 294 Cr.P.C. were conducted wherein accused person
admitted the factum of registration of FIR no. 267/2023 alongwith certificate u/s 65B
of IEA as Ex. P1 (colly) and FSL report dt. 09.08.2023 as Ex P2 (colly), pursuant to
the admission made by accused of these documents, witnesses at Sr. No. 4 & 5 were
dropped from the list of witnesses.
5. Ld. APP for the State has argued that prosecution witnesses have supported the
prosecution case and their testimony has remained unrebutted. It has been further
argued that on the combined reading of the testimony of all the prosecution witnesses,
offence U/S 33 of Delhi Excise Act has been proved beyond doubt.
6. Per contra, Ld. Counsel for accused person has stated that there is no legally
sustainable evidence against the accused person and that the accused person has been
falsely implicated by the police officials and even recovery of illicit liquor has not
been proved from the possession of accused person as no public witnesses were joined
by the police officials during investigation and recovery proceedings. It is further
argued that due to the lacunae and incoherency in the story of the prosecution, the
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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accused person be given the benefit of doubt and are therefore, entitled to be
acquitted.
7. Prior to delving into the contentions raised by the prosecution and defence, let
us discuss the testimonies of the material prosecution witnesses in brief.
8. PW1 HC Vishram is the complainant in this case. He deposed that on
28.04.2023 he was posted as HC at PS Palam Village. On that day he was on beat
patrolling duty at Mangla Puri Chowk. At around 2:45 AM one secret informer came
to him and informed about one person who was selling illicit liquor near Mangla Puri
Phase II, Near DIU Office, DDA Park and can be apprehended red handed if raided.
Thereafter, he asked 45 public persons to join the raid, however. none agreed and left
from there without telling their name and addresses. Thereafter, without wasting time,
he along with the secret informer reached at the spot i.e. Mangla Puri Phase II, Near
DIU Office, DDA Park where at the pointing out of secret informer, he apprehended
one person carrying one white katta who upon seeing him, tried to run away from the
spot and when he tried to inquire about his name, he did not disclose his identity.
Upon checking the said white katta it was found containing illicit liquor. Thereafter,
he shared the information with the DO Concerned and HC Bhagwan Sahay reached at
the spot and he handed over the accused alongwith the recovered case property to HC
Bhagwan Sahay/IO. Upon inquiry the name of the said person was revealed as Vikas
@ Shailender. Thereafter, IO recorded his statement Ex. PW1/A. On checking the said
white katta it was found containing 136 quarter bottles of Fresh Mota Masaledar Desi
Sharab for sale in Haryana Only 180 ML Each, 37 quarter bottles of Takatak Desi
Sharab for sale in Haryana only 180 ML each, 12 quarter bottles of white & Blue
whisky for sale in Delhi 180 ML Each and 12 quarter bottles of Denis Special Whisky
for sale in Delhi 180 ML Each. Two quarter bottles were taken out as sample from
Fresh Mota Masaledar Desi Sharab, one quarter bottles each were taken out as sample
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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from other brands of recovered illicit liquor and mouth of the samples were tied with
white cloth and sealed it with the seal of ‘SK’ and total 5 samples quarter bottles were
taken out and all the samples bottles were kept in one white cloth pullanda which was
was given Sr. No. P1. The remaining case property were kept in said white katta and
mouth of the said katta was tied with one white cloth and was sealed with the seal of
SK. The case property were taken into possession vide seizure memo Ex. PWI/B. IO
filled Form M29. The seal after use was handed over to him. Thereafter, IO prepared
rukka/Tehrir and handed over the same to him and he got the present case FIR
registered and returned back to the spot and handed over the copy of FIR and rukka to
IO. Thereafter, IO prepared the site plan Ex.PW1/C. Thereafter, IO arrested the
accused vide arrest memo Ex. PW1/D and conducted the personal search of the
accused vide Ex. PW1/E and recording disclosure statement of accused vide Ex.
PWI/F. They left the spot and returned back to the PS and IO had deposited the case
property with the MHCM concerned. During investigation IO recorded his statement
U/s 161 Cr. PC. Accused was correctly identified by the witness in the court. The
identity of case property is not disputed by Ld. Defence Counsel.
9. PW2 HC Bhagwan Sahay is the IO of the case. He deposed that on
28.04.2023 he was posted as HC at PS Palam Village. On that day on receipt of DD
no.13A, he went to the Mangla Puri Phase II, Near DIU Office, DDA Park where HC
Visharam met him and handed over to him custody of one person alongwith white
katta. He recorded the statement of Ct. Laxmikant already Ex.PW1/A. On checking
the said white katta it was found containing 136 quarter bottles of Fresh Mota
Masaledar Desi Sharab for sale in Haryana Only 180 ML Each, 37 quarter bottles of
Takatak Desi Sharab for sale in Haryana only 180 ML each, 12 quarter bottles of
white & Blue whisky for sale in Delhi 180 ML. Each and 12 quarter bottles of Denis
Special Whisky for sale in Delhi 180 ML Each. Two quarter bottles were taken out as
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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sample from Fresh Mota Masaledar Desi Sharab, one quarter bottles each were taken
out as sample from other brands of recovered illicit liquor and mouth of the samples
were tied with white cloth and sealed it with the seal of ‘SK’ and total 5 samples
quarter bottles were taken out and all the samples bottles were kept in one white cloth
pullanda which was was given Sr. No. P1. The remaining case property were kept in
said white katta and mouth of the said katta was tied with one white cloth and was
sealed with the seal of SK. The case property were taken into possession vide seizure
memo already Ex. PW1/B. He filled Form M29. The seal after use was handed over
to HC Vishram. Thereafter, he prepared rukka/Tehrir, now Ex.PW2/A and handed
over the same to HC Vishram and he got the present case FIR registered and returned
back to the spot and handed over the copy of FIR and rukka to him. Thereafter, he
prepared the site plan already Ex.PWI/C. Thereafter, he arrested the accused vide
arrest memo Ex.PW1/D and conducted the personal search of accused vide Ex. PWI/E
and recorded disclosure statement of accused vide Ex.PWI/F. After completion of
investigation, they left the spot and returned back to the PS and he had deposited the
case property with the MHCM concerned. During investigation he recorded statement
U/s 161 Cr. PC of the witness. Accused was correctly identified by witness in the
court. The identity of case property is not disputed by Ld. Defence Counsel.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
10. Statement of the accused Vikash @ Shailender under Section 281/313 Cr.P.C.
was recorded separately on 3.03.2025 in which all the incriminating circumstances
appearing in evidence were put to them. The accused controverted and denied the
allegations leveled against him and stated that he has been falsely implicated in the
case. Accused person further opted to not lead evidence in his defence.
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
11. I have bestowed my thoughtful consideration to the rival submissions made by
both the parties. In the present case, the Accused Vikash @ Shailender has been
indicted for the offence U/S 33 of Delhi Excise Act. In order to prove the liability of
accused Vikash @ Shailender under Section 33 of the Delhi Excise Act, the
prosecution must establish the fulfilment of all the essential ingredients of the offence.
The contents of Section 33 of the Delhi Excise Act are reproduced as follows:
“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, utensil,
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.”
i). Doubtful seziure memo and form M29.
12. A careful reading of the testimony of PW1 and 2 reflects that even before the
Rukka was prepared, the case property i.e. illicit liquor was seized vide Seizure memo
Ex. PW1/B and then, Rukka was prepared and thereafter, upon registration of FIR,
Ex P1 (colly) HC Bhagwan Sahay prepared the spot map and conducted further
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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investigation. The narration of such a chronology of events leads to the irresistible
conclusion that the seizure memo of the liquor was prepared, prior to registration of
the FIR. Accordingly, it follows that the number of the FIR could not have been
mentioned on the seizure memo as the same was prepared prior to registration of FIR
however, quite surprisingly, perusal of the seizure memo reflects the mentioning of
the full particulars of the FIR thereupon, which fact has remained unexplained on
behalf of the prosecution and no explanation from the prosecution is forthcoming as to
how the FIR number surfaced on the document which was prepared prior to the
registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
13. At this stage, reference may be made to the decision of the Hon’ble High
Court of Delhi in Lalit v. The Delhi Administration, 1989 Cri. L.J. 127,
wherein it was observed in paragraph 5 as follows:
“…Learned counsel for the state concedes that immediately after the
arrest of the accused, his personal search was effected and the memo
Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was
prepared in the presence of the witnesses. After that, the ruqa
Ex.PW11/F was sent to the Police Station for the registration of the case
on the basis of which the FIR, PW 11/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…”
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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14. The aforesaid ruling of the Hon’ble High Court of Delhi squarely applies to the
facts in the present case as well, which leads to only one of the either inference, that
is, either the FIR was registered prior to the alleged recovery of the illicit liquor, or
that the said document was prepared later in point of time. In either of the scenarios, a
dent is created in the version of the prosecution, the benefit of which must accrue to
the accused.
15. Since in the present case, all the witnesses are police personnel and the
necessary safeguards in the investigation have not been followed by the IO, I am of
the view that the possibility of false implication of the accused persons under the
provisions of Excise Act cannot be ruled out at the instance of the police.
ii). The nonjoining of any independent / public witness.
16. It is evident from the record that no public witness to the recovery of the liquor
has been either cited in the list of prosecution witnesses or has been examined by the
prosecution. Apparently, PW2 HC Bhagwan Sahay had even asked public persons to
join the investigation, however, they refused to join the investigation. As apparent
from record, no notice was served to such public persons upon their refusal to join
investigation in the case. Thus, it is not the case of prosecution that public witnesses
were not available at the spot. However, from a perusal of the record, no serious effort
for joining public witnesses appears to have been made by the investigating officer.
These facts are squarely covered by the ruling of the Hon’ble High Court of Delhi in
the case titled as, Anoop Joshi v State 1992 (2) C.C. Cases 314 (HC), wherein it was
observed as under:
“…18. It is repeatedly laid down by this Court 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 evidence that no such
sincere efforts have been made, particularly when we find that shops
were open and one or two shopkeepers could have been persuaded to
join the raiding party to witness the recovery being made from the
FIR No. 267/2023 St. Vs. Vikash @ Shailender
9appellant. 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…”
17. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999
(1) C.L.R. 69, Hon’ble Punjab & Haryana High Court held as under:
“…The recovery of illicit liquor was effected from the possession of the
petitioner during noon time and it is in the evidence of the prosecution
witnesses that some witnesses from the public were available and they
were asked to join the investigation. The explanation furnished by the
prosecution is that the independent witnesses were asked to join the
investigation but they refused to do so on the ground that their joining
will result into enmity between them and the petitioner…”
18. It is well settled principle of the law that the investigating agency should join
independent witnesses at the time of recovery of contraband articles, if they are
available and their failure to do so in such a situation casts a shadow of doubt on the
prosecution case. In the present case also as stated by PWs, admittedly the
independent witnesses were available at the time of recovery but they did not join the
investigation. This explanation does not inspire confidence because the police
officials who are the only witnesses examined in the case have not given the names
and addresses of the persons contacted to join. It is a very common excuse that the
witnesses from the public refused to join the investigation. A police officer conducting
investigation of a crime is entitled to ask anybody to join the investigation and on
refusal by a person from the public the Investigating Officer can take action against
such a person under the law. Had it been a fact that the witnesses from the public had
refused to join the investigation, the IO must have proceeded against them under the
relevant provision of law. The failure to do so by the police officer is suggestive of the
fact that the explanation for nonjoining the witnesses from the public is an after
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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thought and is not worthy of credence. All these facts taken together make the
prosecution case highly doubtful.
19. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the
aforesaid finding, by providing that whenever any search is made, two or more
independent and respectable inhabitants of the locality are required to be made
witnesses to such search, and the search is to be made in their presence. Under Section
100(8) Cr.P.C, refusal to be a witness can render such non willing public witness
liable for criminal prosecution. Despite the availability of such a provision, no sincere
attempts were made by the police to join witnesses in the present case. Therefore,
noncompliance of the mandatory provisions of law, even though public witnesses
were easily available in the vicinity, makes the prosecution version highly doubtful.
20. This Court is conscious of the legal position that nonjoining of independent
witnesses cannot be the sole ground to discard or doubt the prosecution case, as has
been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However,
evidence in every case is to be sifted through in light of the varied facts and
circumstances of each individual case. As discussed above and hereinafter, the
testimony of the police witnesses in the present case is not worthy of credit. In such a
situation, evidence of an independent witness would have rendered the muchneeded
corroborative value, to the otherwise uncompelling case of the prosecution.
iii). Possibility of misuse of seal of the investigating officer.
21. As per the prosecution story, after preparing seizure of the case property and
the samples of illicit liquor with seal of ‘SK’, the aforesaid seal was handed over to
PW1 HC Vishram. This fact cannot be ignored that PW1 HC Vishram was a
recovery witness and had apprehended the accused and was subsequently, a part of the
investigation in the present case. Thus, the seal was not handed over to any
independent witness. There is nothing on record to suggest that PW2 HC Bhagwan
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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Sahay had made efforts to handover the seal to any independent witness. Further, no
taking over memo is on record to show the genuineness of fact of actual taking over of
seal by PW1 HC Vishram from PW2 HC Bhagwan Sahay. In such a factual
backdrop, since the seal was given to PW1 HC Vishram, the seal remained with the
police officials of the same police station and therefore, the possibility of tampering
with the case property cannot be ruled out. Moreover, it is not even the case of the
prosecution that the seal was not within the reach of the IO and thus, there was no
scope of tampering of case property.
22. In this regard, judgment in case titled as Ramji Singh v State of Haryana 2007
(3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph
7 that:
“…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. In the present case, the seal of
Investigating OfficerHoshiar Singh bearing impression HS was
available with Maha Singh, a junior police official and that of Deputy
Superintendent of Police remained with Deputy Superintendent of Police
himself. Therefore, the possibility of tampering with seals as well as
seized contraband and samples cannot be ruled out…”
23. Similarly, Hon’ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT
193, had 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. The prosecution could have proved from the CFSL form
itself and from the road certificate as to what articles were taken from
the Malkahana. Once a doubt is created in the preservation of the
sample the benefit of the same should go to the accused…”
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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24. It is nowhere the case of the prosecution that the seal after use was handed over
to any of the independent witness. In view of discussion made above, the conclusion
which can be arrived at is that the seal remained with the Investigating Officer or with
the other member of the raiding party therefore the possibility of interference or
tempering of the seal and the contents of the parcel cannot be ruled out. Thus, in light
of the aforesaid discussion, the possibility of misuse of seal and tampering of case
property cannot be ruled out.
25. In view of the discussion made above, it is clear that the prosecution has
miserably failed to prove the allegations leveled against the accused Vikash @
Shailender, more specifically, the recovery of the alleged illicit liquor is not proved
beyond reasonable doubt. Therefore, this Court hereby accords the benefit of doubt to
the accused and holds the accused Vikash @ Shailender not guilty of commission
of the offence in question. Accordingly, the Accused Vikash @ Shailender is
acquitted of the offence U/S 33 of Delhi Excise Act.
26. The bail bonds, if any furnished persons at the time of commencement of trail
stands canceled. Surety, if any stands discharged. Documents, if any shall be returned
to its rightful owner as per rules. Endorsement, if any stands canceled. Case property
if any, shall be disposed of after expiration of period to assail this judgment and in
case of appeal, as per the directions of Ld. Appellate Court. Case file be consigned to
record room after due compliance. SAURABH
Digitally signed by
SAURABH GOYALGOYAL Date: 2025.04.19
15:12:23 +0530
Announced in the open court on (Saurabh Goyal)
this day i.e. 19th April, 2024 JMFC-01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 12 pages and each page bears my
signatures. Digitally signed by
SAURABH SAURABH GOYAL
GOYAL Date: 2025.04.19
(Saurabh Goyal)
15:12:28 +0530JMFC-01 South West District, Dwarka,
New Delhi
FIR No. 267/2023 St. Vs. Vikash @ Shailender
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