Delhi District Court
State vs Shankar Singh on 9 April, 2026
IN THE COURT OF SHRI HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT,
New Delhi.
FIR No. 01/17
PS: Dabri
U/s: 33 Delhi Excise Act
Case no. 2614/2018
State Vs. Shankar Singh
S/o Sukh Dev
R/o C-161, JJ Colony,
Bindapur Pocket IV, New Delhi.
..... Accused
S. No. of the case : 2614/2018
The date of offence : 02.01.2017
The name of the complainant : Ct. Bharat Lal
The name of the accused : Shankar Singh
The offence complained : Section 33 Delhi Excise Act
The plea of the accused : Pleaded not guilty
Argument heard on : 09.04.2026
The date of order : 09.04.2026
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that 02.01.2017, Ct. Bharat Lal was
posted at PS Dabri as Constable. On that day, he was on patrolling duty
alongwith Ct. Dharmender and while patrolling, when they were present
on Beat no. 2 under PS Dabri and reached at house No. C-161, JJ
Colony, Bindapur, Pocket-IV, they saw that one person was sitting at
chair and he was in possession of one plastic bag. On suspicion, he asked
about the bag and after not getting any satisfactory answer, Ct. Bharat
FIR No. 01/2017. State Vs. Shankar Singh 1 of 17
Lal checked the same and on checking, it was found containing illicit
liquor.
2. An FIR bearing No. 01/2017,U/s 33 Delhi Excise Act was registered at
PS Dabri against the accused. Investigation of the case was handed over
to Investigating Officer ASI Sumer Singh who filed the chargesheet.
3. On completion of investigation, a chargesheet u/s 33 Delhi Excise Act
was filed against the accused. After taking cognizance of the offence, the
accused was summoned to face trial.
4. On his appearance, a copy of chargesheet along with documents were
supplied to the accused in terms of Section 207 of the Code of Criminal
Procedure (hereinafter referred to as ‘CrPC‘). On finding prima facie
case against the accused, a charge under section 33 Delhi Excise Act was
framed against him, to which he pleaded not guilty and claimed trial.
5. During the course of trial, the prosecution examined the following
witnesses.
6. Ct. Bharat Lal was examined as PW1. He stated thus: “On 02.01.2017, I
was posted at PS Dabri as Ct. On that day, I was on patrolling duty
alongwith Ct. Dharmender and while patrolling, when we were present
on Beat No. 2 under PS Dabri and reached at house No. C-161, JJ
Colony, Bindapur, Pocket -IV, we saw that one person was sitting at
FIR No. 01/2017. State Vs. Shankar Singh 2 of 17
chair and he was in possession of one plastic bag. On suspicion, I asked
about the bag and after not getting any satisfactory answer, I checked the
same and on checking, it was found containing illicit liquor. Thereafter,
I informed the PS. From PS, ASI Sumer Singh reached there and we
handed over the accused alongwith recovered liquor from him to IO.
Thereafter, IO checked the plastic bag. On checking the same, it was
found containing 90 quarter bottles of Raseela Santrara Masaledar desi
sharab for sale in Haryana. IO took out two bottles as sample from the
plastic bag and the rest of the case property sealed with the seal of SS.
The sample bottles were also sealed with the seal of SS. Form M 29 was
filled up. Seizure memo of case property was prepared vide memo
ExPW1/A bears my signature at point A. Thereafter, IO recorded my
statement which is Ex.PW1/B bears my signature at point A and
prepared a rukka and handed over the same to me for registration of the
case. I went to PS and after getting the case registered returned to the
spot and handed over the copy of FIR and original rukka to IO. IO
prepared the site plan. IO arrested the accused and his personal search
was conducted vide memo ExPW1/C&D respectively, both bear my
signatures at point A. Thereafter, we left the spot. Case property and
samples were deposited in malakhana. Accused was taken for medical
examination by Const. Dharmender. IO recorded my statement.
Accused is present in the court today(correctly identified). I can identify
the case property if shown to me. At this stage MHCM has produced the
case property ie bottle of Raseela Santra masaledar desi sharab, witness
correctly identify the same as the part of the case property. The bottle is
Exp1. The remaining case property was destroyed by the order of Excise
FIR No. 01/2017. State Vs. Shankar Singh 3 of 17
Commissioner, vide No. F Conf./2017/2110/11 dt. 27.07.2017, where at
serial No. 12 the present case No. is found mentioning. Copy of the same
is taken on record and the same is Mark X (OSR).”
7. In his cross-examination, PW1 stated thus: ” We all left the spot after the
completion of investigation at 11 pm. I went to the PS on bike alongwith
IO ASI Sumer Singh along with case property and Ct. Dharmender took
accused from the spot for his medical examination at 11 pm on his
motorcycle. I went with tehrir at 10:30 pm on my motorcycle. I came to
the spot at about 10:50 pm on the said motorcycle alone. IO prepared all
the documents and memos after the registration of FIR. I do not
remember the DD No. of my arrival and departure. IO prepared all the
documents and memos in his own handwriting. At the spot there are
residential houses and public persons were passing by. It is correct that I
knew the accused prior to the incident. It is correct that case property
was not disposed off in my presence. It is wrong to suggest that nothing
incriminating has been recovered from the possession of the accused or
at her instance or that all the proceedings had been conducted while
sitting at the PS or that I am deposing falsely.”
8. Ct. Dharmender was examined as PW2. He stated thus: “I was posted at
PS Dabri as Ct. On that day, I was on patrolling duty alongwith Ct.
Bharat Lal and while patrolling, when we were present on Beat No. 2
under PS Dabri and reached at house No. C-161, JJ Colony, Bindapur,
Pocket -IV, we saw that one person was sitting at chair and he was in
possession of one plastic bag. On suspicion, we asked about the bag and
FIR No. 01/2017. State Vs. Shankar Singh 4 of 17
after not getting any satisfactory answer, we checked the same and on
checking, it was found containing illicit liquor. Thereafter, Ct Bharat Lal
informed the PS. From PS, ASI Sumer Singh reached there and we
handed over the accused alongwith recovered liquor from him to IO.
Thereafter, IO checked the plastic bag. On checking the same, it was
found containing 90 quarter bottles of Raseela Santra Masaledar Desi
Sharab for sale in Haryana. IO took out two bottles as sample from the
plastic bag and the rest of the case property sealed with the seal of SS.
The sample bottles were also sealed with the seal of SS. Form M 29 was
filled up. Seizure memo of case property was prepared vide memo Ex.
PW1/A bearing my signatre at point B. Thereafter, IO recorded the
statement of Ct. Bharat Lal and prepared a rukka and handed over the
same to Ct. Bharat lal for registration of case. He went to PS and after
getting the case registered returned to the spot and handed over the copy
fo FIR and original rukka to IO. IO prepared the site plan. IO arrested the
accused and his personal search was conducted vide memo Ex. PW1/C
& D respectively, both bearing my signature at point B. Thereafter, we
left the spot. Case property and samples were deposited in malakhana.
Accused was taken for medical examination by me and after medical
examination, he was sent to lock up. IO recorded my statement. Accused
is present in the court today(correctly identified). I can identify the case
property if shown to me. At this stage MHCM has produced the case
property ie bottle of Raseela Santra masaledar desi sharab, witness
correctly identify the same as the part of the case property. The bottle is
already Exp1. The remaining case property was destroyed by the order
of Excise Commissioner, vide No. F Conf./2017/2110/11 dt.
FIR No. 01/2017. State Vs. Shankar Singh 5 of 17
27.07.2017, where at serial No. 12 the present case No. is found
mentioning. Copy of the same is taken on record and the same is Mark X
(OSR).”
9. In his cross-examination, he stated thus: “We all left the spot after the
completion of investigation at 11 pm. We all went to the PS after the
completion of investigation on our separate three motorcycles. I took the
case property alone on my motorcycle. Accused was not taken for
medical examination from the spot. Ct. Bharat went with tehrir at 10.30
pm on his motorcycle. He came to the spot at about 10.50 pm on the said
motorcycle alone. IO prepared all the documents and memos after the
registration of FIR. I do not remember the DD No. of my arrival and
departure. IO prepared all the documents and memos in his own
handwriting. At the spot there are residential houses and public persons
were passing by. It is incorrect that I knew the accused prior to the
incident. It is correct that case property was not disposed off in my
presence. It is wrong to suggest that nothing incriminating has been
recovered from the possession of the accused or at her instance or that all
the proceedings had been conducted while sitting at the PS or that I am
deposing falsely.”
10. SI Sumer Singh was examined as PW3. He stated thus: “On 02.01.2017,
I was posted at PS Dabri. On that day, on receiving DD No. 62A
regarding the apprehension of accused along with illicit liquor I
reached at the spot i.e. C-1/61 JJ Colony, Pocket IV, Bindapur, where
Ct. Bharat Lal and Dharmender met me and handed over the accused
FIR No. 01/2017. State Vs. Shankar Singh 6 of 17
along with recovered liquor from him to me. I requested some passers
by to join the proceedings but none agreed and left the place without
disclosing their names and address. Thereafter, I checked plastic katta
which was found containing 90 quarter bottles of Asli Santra Masaledar
Desi Sharab. Thereafter, I took out two quarter bottles as sample and
the rest of the case property sealed with the seal of SS. The sample
bottles were also sealed with the seal of SS. Form M-29 was filled up
by me marked as Mark Z1 bearing my signature at point A. Seizure
memo of case property was prepared vide memo already Ex. PW1/A
bears my signature at point X. Thereafter, I recorded statement of Ct.
Bharat Lal which is already Ex.PW1/B bears my attesting signature at
point X and prepared a rukka already Ex.PW3/A bearing my signature
at point X and handed over the same to Ct. Bharat for the registration
of the case. He went to PS and after getting the case registered returned
to the spot and handed over the copy of FIR and original rukka to me. I
prepared the site plan already Ex.PW3/B bearing my signature at point
X. I arrested accused, personal searched vide Ex. PW1/C and Ex.
PW1/D both bearing my signature at point X. Thereafter, we left the
spot case property and samples were deposited in the malkhana. I
recorded the statement of witnesses. During investigation, I got the
samples deposited at Excise Lab vide RC no. 43/21/27 through Ct.
Vijay. Same is now marked as Mark D. I can identify accused and the
case property if shown to me. At this stage, Ld. Counsel for the accused
submits that identity of case property and accused is not disputed as
same is already Ex. A-1 and Mark Y1″.
FIR No. 01/2017. State Vs. Shankar Singh 7 of 17
11. In his cross-examination, he stated thus: “I came at the spot at about
09.40 PM and left the spot at about 11:45 PM. Ct. Bharat Lal went to PS
for registration of FIR at about 10:00 PM and came back at the spot at
about 11:00 PM. There were houses and shops near the spot. No notice
was served to any public person. No seal handing over memo was
prepared in my presence. Case property was taken to PS by me on e-
rickshaw. It is incorrect to suggest that nothing incriminating has been
recovered from the possesion of the accused or at the instance of accused
or that all the proceedings had been conducted while sitting at PS or that
I am deposing falsely”.
12. Statement of accused was recorded under Section 294 Cr.P.C and he
admitted the following documents:
a. FIR No. 01/2017 PS Dabri alongwith certificate
U/s 65B IEA as Ex.P1(Colly) without admitting the
contents of the same.
b. Report of Excise Lab as Ex. P2.
13. Thus, witness at serial No. 4,7 and 8 were dropped from the list of
witness. Witness at Sl. no. 3 was also dropped from the list of witnesses
as it would depose the same facts as deposed by PW3. Hence, witnesses
at Sl. No. 3 was dropped being the repeated witnesses from the list of
witnesses.
FIR No. 01/2017. State Vs. Shankar Singh 8 of 17
14. The prosecution evidence was closed and thereafter the statement of
accused u/s 313 Cr.P.C was recorded on 09.04.2026 wherein all the
incriminating evidence appearing against the accused was put to him,
which he had denied to be correct and submitted that he was not found in
possession of illicit liquor. That he has been falsely implicated in this
present case. That he is innocent and all the witnesses deposing against
him are interested witnesses. The accused chose not to lead any evidence
in his defence.
15. It is argued by Ld. APP for the State that it is clear from the statement of
the complainant and other witnesses as well as the documents appearing
on record that the accused was in possession of illicit liquor. He has thus,
submitted that the prosecution has proved its case beyond reasonable
doubt against the accused and he be, therefore, held guilty and convicted
for the above-said offence.
16. Per contra, Ld. Counsel for the accused has argued that the State has
failed to establish its case beyond reasonable doubt and since nothing
incriminating has appeared against the accused, he be, therefore,
acquitted for the offence charged.
17. I have heard the Ld. APP for the State and Ld. Defence counsel at length,
perused the record, gone through the relevant provisions of law and
given my thoughts to the matter.
Findings of the Court
FIR No. 01/2017. State Vs. Shankar Singh 9 of 17
18. Before embarking on the analysis and appreciation of the statements and
evidences on record it is apposite to state that to bring home the guilt of
the accused in any criminal matter beyond the shadow of reasonable
doubt the burden rests always upon the prosecution. The burden of proof
on the prosecution is heavy, constant and does not shift. The case of the
prosecution needs to stand on its own footing failing which benefit of
doubt ought to be given in favour of the accused. Needless to say, in this
case also, with or without defense evidence, the prosecution has to
establish its case beyond reasonable doubt. On the touchstone of the
above settled legal proposition the facts of the present case are to be
analysed.
I. Non-joining of Public Witnesses
19. One of the arguments of Ld. Counsel for the accused is that since no
independent witness has been joined at the time of investigation, it is,
therefore, difficult to believe the prosecution version as it creates a doubt
on the veracity of the statement of police witnesses.
20. This court has given its thoughts to the above contention of Ld. Counsel
for the accused. Perusal of the testimony of PW-1, PW2 and PW3/IO
reveal that they have categorically stated that there were residential
houses at the spot and public persons were passing by. They had also
asked public persons to join the investigation, but none of them had
agreed. Thus, it is not the case of the prosecution that no public person
was present at or near the spot of recovery. However, it is equally true
FIR No. 01/2017. State Vs. Shankar Singh 10 of 17
that no steps are shown to have been taken to note down the names and
addresses of those persons. It is a well settled proposition of law that
non-joining of public witness throws doubt over the fairness of the
investigation by police. Section 100 (4) of the CrPC also casts a statutory
duty on an official conducting search to join two respectable persons of
the society. However, no public person has been joined by the IO in the
present case.
21. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine
Del 469 , Hon’ble High Court of Delhi has observed as under:
“The recovery was from a street with houses on
both sides and shops nearby. And, yet no witness
from the public has been produced. Not that in
every case the police officials are to be treated as
unworthy of reliance but their failure to join
witnesses from the public especially when they are
available at their elbow, may, as in the present
case, cast doubt. They have again churned out a
stereotyped version. Its rejection needs no
Napoleon on the Bridge at Arcola (Emphasis
supplied).”
22. In the present case also, non-joining of any public person as a witness
creates doubt on the case of the prosecution. Although, this Court is
conscious of the fact that it is a well settled law that the prosecution case
cannot be thrown out or doubted on the sole ground of non-joining of
public witnesses as they keep themselves away from the Court unless it
is inevitable, however, in the present case, it is not only the absence of
public witnesses which raises a doubt on the prosecution version but
FIR No. 01/2017. State Vs. Shankar Singh 11 of 17
there are other circumstances too, as discussed in the later part of the
judgment, which raise suspicion over the prosecution case.
II. No seal Handing over memo.
23. PW 3/IO in his cross examination stated that no seal handing over memo
was prepared in his presence. Thus, 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.
24. As per evidence available on record, the seal after use was not given to
any independent public person. Further, there is nothing on record to
prove whether the said seal was ever deposited in the Malkhana of Police
Station or not. In such case, tampering with case property can also not be
ruled out. As a result, the benefit of doubt has to be given to the accused.
Reliance is placed upon the decision in Safiullah v. State, (1993) 49
DLT 193 , where the Hon’ble High Court of Delhi observed:
“9. … The seal after use were kept by the police
officials themselves therefore the possibility of
tempering with the contents of the sealed parcel
cannot be ruled out. It was very essential for the
prosecution to have established from stage to stage
the fact that the sample was not tempered with. ……
Once a doubt is created in the preservation of the
sample the benefit of the same should go to the
accused.”
III. Discrepancy in the case qua Seizure Memo and Form M29.
FIR No. 01/2017. State Vs. Shankar Singh 12 of 17
25. There exists yet another discrepancy in the case of the prosecution. PW
3/IO in his examination categorically stated that he prepared the site
plan, seizure memo, rukka and Form M 29 and then handed over the
rukka to PW 1 for the purpose of registration of FIR. PW1, thereafter,
went to the PS and got the FIR registered. PW 1 and PW 2 also submitted
the same. Thus, it is clear from the testimony of PW 3/IO and PW 1 and
PW2 that the seizure memo and Form M 29 were prepared before the
tehrir/original rukka was handed over by PW3 IO to PW1 for
registration of the FIR. The FIR was thus, admittedly registered after the
preparation of the seizure memo and Form M 29, however, surprisingly
it bears the FIR number and it is thus worth wondering that if the FIR
was never registered at the time when the seizure memo and Form M 29
were prepared, how the FIR number came to be noted in the seizure
memo and Form M 29 since the number of the FIR could have come to
knowledge of PW 3/IO only after a copy of the FIR was brought to the
spot by PW 1. Thus, the number of FIR in no circumstances could have
been mentioned by the IO on the seizure memo and Form M 29, which
came into existence before registration of the FIR.
26. In this context, Hon’ble High Court of Delhi in Pawan Kumar v. The
Delhi Administration, 1987 SCC OnLine Del 290, has observed as under
in paragraph 6:
“Learned counsel for the State concedes that
immediately after the arrest of the accused, his
personal search was effected and the memo Ex.
FIR No. 01/2017. State Vs. Shankar Singh 13 of 17
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, 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. 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.”
27. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del
859, the Hon’ble High Court of Delhi while dealing with an appeal
under the Narcotic Drugs and Psychotropic Substances Act, 1985 has
also observed about the discrepancy, i.e., appearance of FIR number on
seizure memo and other documents before registration of FIR and it runs
as under:
“Surprisingly, the secret information (Ex. PW7/A)
received by the Sub-Inspector Narender Kumar
Tyagi (PW-7), the notice under Section 50 of theFIR No. 01/2017. State Vs. Shankar Singh 14 of 17
Act (Ex. PW5/A) alleged to have been served on
the appellant, the seizure memo (Ex. PW1/A) and
the report submitted under Section 57 of the Act
(Ex. PW7/D) bear the number of the FIR (Ex.
PW4/B). The number of the FIR (Ex. PW4/B)
given on the top of the aforesaid documents is in
the same ink and in the same handwriting, which
clearly indicates that these documents were
prepared at the same time. The prosecution has not
offered any explanation as to under what
circumstance number of the FIR (Ex. PW4/B) had
appeared on the top of the aforesaid documents,
which were allegedly prepared on the spot. This
gives rise to two inferences that either the FIR (Ex.
PW4/B) was recorded prior to the alleged recovery
of the contraband or number of the said FIR was
inserted in these documents 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 recovery of the
contraband in the manner alleged by the
prosecution.”
28. In the light of the abovesaid judgments, the mentioning of the number of
FIR in the seizure memo creates serious doubt on the prosecution
version and alleged recovery of illicit liquor and it leads to only one
conclusion that either the said document was prepared later on or that the
FIR was registered earlier in point of time. In both the aforesaid
eventualities, a reasonable doubt has been raised on the version of the
prosecution the benefit of which has to be given to the accused.
IV. No departure or the arrival entry of PW 1 and PW 2.
FIR No. 01/2017. State Vs. Shankar Singh 15 of 17
29. The present case rests entirely on the alleged recovery of case property,
i.e. illicit liquor, from the possession of the accused at the relevant time
by a police official PW1 and PW2, who were on patrolling duty at the
relevant time and place, as per the prosecution story.
30. Police officials are under a statutory duty to mark their departure and
arrival in the register kept in the police station for the purpose as per the
Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934,
provides that 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 shall be entered vide a separate entry and this entry shall be made
immediately on arrival or prior to the departure of the officer concerned
and shall be attested by the latter personality by signature or seal. In the
present case, no departure or the arrival entry has been proved on the
record by the prosecution. In absence of the departure and arrival entry
of the police officials their presence at the spot cannot be believed.
Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29
Delhi High Court wherein it has been observed:
“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 versionFIR No. 01/2017. State Vs. Shankar Singh 16 of 17
and attributes oblique motive on the part of the
prosecution.”
31. In the present matter there exists no entry which could even remotely
suggest that PW1 and PW2 were assigned patrolling duty on the given
date and time and they went for the purpose of patrolling at the given
date and time.
32. Thus, in light of the above discussions which throws doubt on the
authenticity of the prosecution version, this court is of the opinion that
prosecution has failed to prove its case beyond reasonable doubt that
illicit liquor was recovered from the possession of the accused. The
accused Shankar Singh is, therefore, acquitted of the offence u/s 33
Delhi Excise Act.
Announced in the open court on 09.04.2026 Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2026.04.09
15:58:50
+0530
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 09.04.2026
It is certified that the present judgment runs into 17 pages and each page
bears my signature. Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2026.04.09
15:58:57
+0530
(Harshal Negi)
JMFC-02/DwarkaCourt,
New Delhi, 09.04.2026FIR No. 01/2017. State Vs. Shankar Singh 17 of 17
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