Delhi District Court
State vs Bheem Singh on 19 July, 2025
IN THE COURT OF REETIKA JAIN, JMFC-05 (NORTH-WEST)
ROHINI COURTS: DELHI
State vs. Bheem Singh
FIR NO. : 47/2020
U/S : 33 of Delhi Excise Act
PS : Mangolpuri
JUDGMENT
a) Sl. No. of the case : 3216/2021
b) Date of institution of the case : 06.04.2021
c) Date of commission of offence : 14.01.2020
d) Name of the complainant : Ct. Manoj
e) Name & address of the accused : Bheem Singh S/o Sh. Prabhu
Dayal R/o H. No. E-4/203,
Outer District, Delhi.
f) Offence charged with : S 33, Delhi Excise Act
g) Plea of the accused : Pleaded not guilty
h) Arguments heard on : 19.07.2025
i) Final order : Acquitted
j) Date of Judgment : 19.07.2025
Digitally signed
by REETIKA
REETIKA JAIN
JAIN Date:
2025.07.19
15:15:41 +0530
FIR No. 47/20 PS Mangolpuri State v Bheem Singh Page No. 1 of 14
Digitally
signed by
REETIKA JAIN
REETIKA Date:
JAIN 2025.07.19
15:15:46
+0530
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Bheem Singh has been sent to face trial
with the allegations that on 14.01.2020 at 04.30 PM Near Anukampa
Chowk, West Enclave, within the jurisdiction of PS Mangolpuri,
accused was found in possession of illicit liquor as per seizure memo
Mark ‘A’ without any licence, authority or permit. Investigation was
carried out.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C.
was filed on behalf of the IO and the accused was consequently
summoned. A charge u/s 33 Delhi Excise Act was framed against the
accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined four
witnesses. PW-1 HC Manoj who had allegedly caught the accused red
handed with illicit liquor at Anukampa Chowk, Mangolpuri during his
patrolling duty on 14.01.2020 at Mangolpuri and informed the PS
Mangolpuri and witnessed the entire proceedings (i.e. preparation of
seizure memo, arrest memo, preparation of rukka) carried out by IO on
the spot. IO recorded statement of PW-1 in Ex. PW-1/B. Illicit liquor
was seized in Ex.PW1/A vide seizure memo, site plan Ex. PW-1/C,
disclosure statement Ex. PW-1/F, accused was arrested vide memo Ex.
PW-1/D and personally searched vide memo Ex. PW-1/E, Photograph
of case property is Ex. PW-1/P2 & sample bottle is Ex. PW-1/P1,
destruction order is Mark ‘X’. PW-2 ASI Sandeep Rohilla deposed
qua entry of Register No. 19 i.e. 3445 Ex. PW-2/A (OSR) and RC No.
101/21/20 in Ex. PW-2/B (OSR). PW-3 HC Vikas deposited the
sample alongwith seal and form M-29 in Excise Lab and PW-4 ASI
FIR No. 47/20 PS Mangolpuri State v Bheem Singh Page No. 2 of 14
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signed by
REETIKA REETIKA
Date:
JAIN
JAIN 2025.07.19
15:15:52
+0530Balwan Singh is the IO who deposed that he prepared tehrir Ex.
PW-4/B, filled form M 29 Ex. PW-4/A, on receipt of DD no. 72A.
Site plan was prepared in Ex. PW-4/C, personal search of accused was
conducted vide memo Ex. PW-1/E and other proceedings of
investigation were conducted.
4. The accused admitted the genuineness of following document u/s
294 Cr.PC, without admitting the contents of the same. These
documents were exhibited as under –
(i) FIR Ex. AD-1,
(ii) Endorsement on rukka Ex. AD-2,
(iii)Certificate U/s 65B Indian Evidence Act Ex. AD-3,
(iv) GD No. 72A dated 14.01.2020 is Ex. AD-4,
(v) Excise Lab result is Ex. AD-5,
5. Prosecution evidence was thereafter closed. Statement of accused
was recorded u/s 313 Cr.PC, wherein all the incriminating evidence
was put to the accused, to which he stated that he has been falsely
implicated in this case. Further, the accused did not wish to lead
defence evidence. Final Arguments heard. Case file perused.
6. Short point for determination before the court is as under –
” Whether on 14.01.2020 at about 04.30 p.m within the jurisdiction
of PS Mangolpuri, accused was found in possession of above
mentioned illicit liquor as per seizure memo without any licence or
permit?”
7. It is argued by Ld. APP for the state that from the ocular and
documentary evidence on record, prosecution has proved beyond
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REETIKA by REETIKA
JAIN
JAIN Date: 2025.07.19
15:15:56 +0530
reasonable doubt that accused was found in possession of illicit alcohol
without permit and submitted that accused be convicted of the offence
charged.
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 implanted upon him. It is further submitted by Ld. Counsel
that non-joinder of public witness despite availability cast shadow of
doubt on prosecution story and IO had not taken any steps against so
called independent witnesses, when they allegedly refused to join
investigation. It is further argued by Ld. Counsel for the accused that
tampering with the contents of the parcel cannot be ruled out as seal
was not handed to the independent witness and at the time of
production of case property in the court, it was not bearing case
particulars and same was unsealed.
APPRECIATION OF EVIDENCE
8. The primary issue to be decided in the present case is whether the
prosecution has been able to prove its case against the accused beyond
all reasonable doubt. On a perusal of the oral and documentary evi-
dence/arguments led by the prosecution, the following observation
emerge:
The learned Assistant Public Prosecutor for the state, relying upon
Section 52 of the Delhi Excise Act, had argued that where the accused
is charged of commission of the offence punishable Section 33 of the
Delhi Excise Act, a presumption in favour of the prosecution is raised
under Section 52 of the Delhi Excise Act to the effect that the accused
had committed the said offence and it is for the accused to prove theFIR No. 47/20 PS Mangolpuri State v Bheem Singh Page No. 4 of 14
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REETIKA by REETIKA
JAIN
JAIN Date: 2025.07.19
15:16:01 +0530contrary. The said argument does not find favour with this Court. Sec-
tion 52 of the Delhi Excise Act reads as under:
“Presumption as to commission of offence in certain cases. – (1)
In prosecution under section 33, it shall be presumed, until the
contrary is proved, that the accused person has committed the
offence punishable under that section in respect of any intoxi-
cant, 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 confis-
cation, 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”.
The words “for the possession of which he is unable to account
satisfactorily” used in Section 52 (1) of the Delhi Excise Act clearly re-
veal that as a pre-requisite for the presumption under the aforesaid pro-
vision being raised against the accused, it is imperative for the prosecu-
tion 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 ac-
cused can be called upon to account for the same. However, for the rea-
sons mentioned hereinafter the prosecution has failed to establish be-
yond reasonable doubt that the accused was found in possession of the
alleged illicit liquor. Accordingly, no presumption as provided for un-
der Section 52 of the Delhi Excise Act can be raised against the ac-
cused in the present case.
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signed by
REETIKA REETIKA
Date:
JAIN
JAIN 2025.07.19
15:16:06
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9. In present case, prosecution was duty bound to prove the
possession of the illicit liquor with accused. Same is sought to be
proved by the recovery memo and testimony of the witnesses. But the
manner of conducting inquiry, seizure and search etc. on the spot at the
time of arrest of the accused and alleged recovery of liquor in this case,
makes the prosecution version highly doubtful. The same is discussed
as follows:
Non joinder of public persons:
9.1 Incident is stated to have happened at about 4.30 P.M and it is
evident from the testimony of PW-1 and PW-4 that accused was
apprehended along-with the alleged illicit liquor at public place, but
still no public independent person was cited as a witness in this case.
They clearly stated that people were present who were not even served
notice for joining the investigation. The recovery is alleged to have
been done near a public spot as envisaged also from the site map,
public persons were readily available at the time when the accused was
apprehended but they have not been named even. 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. The failure to make conscious and serious efforts to give
adequate notice to public witnesses is amplified in view of the statuary
duty which is imposed u/s 100(4) Cr.P.C. to call upon two respectable
persons of the locality to join the search. However, no such notice was
served, thereby raising a doubt on the case of the prosecution. Reliance
in this regard is placed on paragraph 6 of the judgment in Pawan
Kumar v. Delhi Administration 1989 Cri.L.J. 127, wherein the Hon’ble
High Court of Delhi had observed as under:
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Digitally signed
REETIKA by REETIKA
JAIN
JAIN Date: 2025.07.19
15:16:11 +0530” … According to Jagbir Singh, he did not join any public witness
in the case while according to Kalam Singh, no public person
was present there. It hardly stands to reason that at a place like a
bus stop near Subhas Bazar, there would be no person present at
a crucial time like 07.30 p.m. when there is a lot of rush of com-
muters for boarding the buses to their respective destinations.
Admittedly, there is no impediment in believing the version of
the Police officials but for that the prosecution has to lay a good
foundation. At least one of them should deposed that they tried to
contact the public witnesses or that they refused to join the inves-
tigation. Here is a case where no effort was made to join any
public witness even though number of them were present. No
plausible explanation from the side of the prosecution is forth-
coming for not joining the independent witnesses in a case of se-
rious nature like the present one. It may be that there is an apathy
on the part of the general public to associate themselves with the
Police raids or the recoveries but that apart, at least the I.O.
should have made an earnest effort to join the independent wit-
nesses. No attempt in this direction appears to have been made
and this, by itself, is a circumstance throwing doubt on the arrest
or the recovery of the knife from the person of the accused.”
Regarding the importance of joining independent witness during
investigation in a case like the present one, reliance may be placed on
Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), wherein, Hon’ble
High Court of Delhi has observed as under:
“18.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
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signed by
REETIKA JAIN
REETIKA Date:
JAIN 2025.07.19
15:16:16
+0530
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 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 rigour 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“.
Similarly, in Nanak Chand Vs. State of Delhi reported as DHC
1992 CRI LJ 55 it is observed as under:-
“that the recovery is proved by three police officials who have
differed on who snatched the Kirpan from the petitioner and at
what time. 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”.
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872,
the Hon’ble Supreme Court held as under:
“It therefore emerges that non-compliance of these provisions i.e.
Sections 100 and 165 Cr.P.C. would amount to an irregularity and
the effect of the same on the main case depends upon the facts and
circumstances of each case. Of course, in such a situation, the
court has to consider whether any prejudice has been caused to
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by REETIKA
REETIKA JAIN
JAIN Date:
2025.07.19
15:16:21 +0530the accused and also examine the evidence in respect of search in
the light of the fact that these provisions have not been complied
with and further consider whether the weight of evidence is in any
manner affected because of the non-compliance. It is well-settled
that the testimony of a witness is not to be doubted or discarded
merely on the ground that he happens to be an official but as a
rule of caution and depending upon the circumstances of the case,
the courts look for independent corroboration. This again depends
on question whether the official has deliberately failed to comply
with these provisions or failure was due to lack of time and
opportunity to associate some independent witnesses with the
search and strictly comply with these provisions.” [Emphasis
supplied]
Considering the aforesaid observations made by the Higher
Courts, the omissions / failure on the part of investigating agency to
join independent public witnesses create reasonable doubt in the
prosecution story and substantiates the defence version that there is
false implication of the accused in the present case and that the
recovery has been falsely planted upon the accused specifically when
no photography of accused carrying illicit liquor has been done.
Further, considering facts and circumstances of the present case in the
light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there
was no lack of time and opportunity to associate some independent
witnesses with the search and strictly comply with the provisions of
Code of Criminal Procedure. Hence, the above-mentioned facts create
serious doubt on the case of the prosecution.
Absence of arrival and departure entries :
9.2 Moreover, the arrival and departure entry in the present case has
not been proved in the present case which is a statutory duty on the police
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by REETIKA
REETIKA JAIN
JAIN Date:
2025.07.19
15:16:26 +0530officials. It would be prudent to reproduce Chapter 22 Rule 49 of the Pun-
jab Police Rules, 1934, which reads as under:
“22.49 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 sta-
tion 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 lat-
ter 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.”
In the present case, the non-proof of departure and arrival entry
assumes more significance as no public person was portrayed as a wit-
ness on behalf of the prosecution. At this juncture, it would be relevant to
refer to a case law reported as “Rattan Lal Vs. State” 1987 (2) Crimes 29,
wherein the Delhi High Court has observed 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 & thus the
matter has to be viewed by the court with suspicion, if the necessary pro-
visions of law are not strictly complied with and then it can at least be
said that it was so done with an oblique motive. This failure of the prose-
cution to bring on record & prove the relevant DD entry as discussed
above creates a reasonable doubt in the prosecution version and attributes
oblique motive on to the actions of the members of the raiding party.
Seal handing over doubtful:
9.3 Even, no seal handing over memo is on record. Hence, considering
the legal position, the benefit of doubt should be given to the accused, as
tampering with case property in such a scenario cannot be ruled out
specifically samples were found unsealed which is admitted by PW-1.
Also, PW-1 deposed that IO had handed over the seal to him. It is the
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by REETIKA
REETIKA JAIN
JAIN Date:
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15:16:31 +0530duty of officer in charge of PS to ensure that case property is preserved
and maintained till the time of disposal of matter by means of final
orders. (Rule 27.12 Punjab Police Rules). Thus, due to this lacuna, the
standard cannot be said to be met beyond reasonable doubt.
At the end, 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 as the factum of recovery of
alleged liquor from accused becomes doubtful as chain of custody is
broken.
The reliance is placed on the judgment of Ramji Singh Vs. State
of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
“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.”
Similarly, Hon’ble Delhi High Court in Safiullah v. State, 1993 (1)
RCR (Criminal) 622, held that –
“10. The seals after use were kept by the police officials
themselves. Therefore the possibility of tampering 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 tampered with. Once a
doubt is created in the preservation of the sample the benefit of
the same should go to the accused.”
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REETIKA by REETIKA
JAIN
JAIN Date: 2025.07.19
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Ante timed seizure memo :
9.4 Interestingly, the seizure memo and site plan contains the FIR
number which makes it apparent that these were prepared prior to regis-
tration of FIR. The same is fatal for the case of the prosecution and re-
liance here is placed on the decision of the Hon’ble High Court of Delhi
in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127,
wherein it was observed in paragraph 5 as under:
“… Learned counsel for the State concedes that immediately after the
arrest of the accused, his personal search was effected and the memo
Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife
was prepared in the presence of the witnesses. After that, the ruqa EX.
PW11/F was sent to the Police Station for the registration of the case
on the basis of 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 registra-
tion. 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 con-
stable. 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. These are few of the cir-
cumstances which create a doubt, in my mind, about the genuineness
of the weapon of offence alleged to have been recovered from the ac-
cused.”
In the instant case as well, no explanation has been furnished on
record as to how the FIR number and case details have appeared on the
site plan and seizure memo. The same leads to inference that either the
said documents were prepared later or that the FIR had been registered
earlier in point of time. In both the aforesaid cases, a dent is created and
unexplained holes are left in the prosecution story, the benefit of which
must accrue to the accused.
Non offering of police officials for their own search:
9.5 Moreover, anywhere in the rukka, it is not mentioned that after the
apprehension of the accused, but before taking the formal/casual searchFIR No. 47/20 PS Mangolpuri State v Bheem Singh Page No. 12 of 14
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REETIKA by REETIKA
JAIN
JAIN Date: 2025.07.19
15:16:47 +0530of the accused, the police officials including the members of the raiding
party, any of them had offered their own search to the accused , meaning
thereby, that it has not been proved on record that the said police offi-
cials, who had effected the apprehension of the accused had offered them-
selves for search by the accused or to any other member of public before
conducting the search of the accused so as to obviate the possibility of the
planting of the case property on to the accused. At this juncture, it would
be appropriate to refer to the judgment of Orissa High Court reported as
“Rabindernath Prusty Vs. State of Orissa” wherein it was held as under:
“10. The next part of the prosecution case is relating to the search and
recovery of Rs. 500/ from the accused. One of the formalities that has
to be observed in searching a person in that the searching Officer and
others assisting him should give their personal search to the accused
before searching the person of the accused. (See AIR 1969 SC 53 :
(1969 Cri. L.J. 279), State of Bihar Vs. Kapil Singh). This rule is
meant to avoid the possibility of implanting the object which was
brought out by the search. There is no evidence on record whatsoever
that the raiding party gave their personal search to the accused before
the latter’s person was searched. Besides the above, it is in the evi-
dence of PWs 2 & 5 that the accused wanted to know the reason for
which his person was to be searched and the reason for such search
was not intimated to the accused. No independent witness had wit-
nessed the search. In the above premises, my conclusion is that the
search was illegal and consequently the conviction based thereon is
also vitiated”.
10. In a criminal trial, the onus remains on the prosecution to prove
the guilt of accused beyond all reasonable doubts and benefit of doubt,
if any, must necessarily go in favour of the accused. It is for the prose-
cution to travel the entire distance from may have to must have. If the
prosecution appears to be improbable or lacks credibility the benefit of
doubt necessarily has to go to the accused. Reference may also be
made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Of-
ficer, Guntur reported as VIII(2007) SLT 454(SC). Therefore, in view
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of the discussions made herein above and the facts and circumstances
of the present case, in my considered opinion, the prosecution has
failed to prove the guilt of the accused beyond reasonable doubt.
Hence, accused Bheem Singh stands acquitted of the offence under
section 33 of Delhi Excise Act, he has been charged with. Case prop-
erty be destroyed after the expiry of the period of appeal. Ordered ac-
cordingly.
File be consigned to record room.
It is certified that this judgment contains 14 pages and every page bears
the signature of undersigned.
Digitally
signed by
Announced in open court REETIKA REETIKA
Date:
JAIN
JAIN
On 19.07.2025
2025.07.19
15:16:54
+0530
Reetika Jain
JMFC -05, North West
Rohini Courts, Delhi/19.07.2025
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