Delhi District Court
State vs Shamshad Khan on 7 May, 2026
IN THE COURT OF SH. ROHIT KUMAR
JMFC-10, DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-057347-2022
Cr. Case 11967/2022
STATE Vs. SHAMSHAD KHAN & ANR.
FIR No. 357/2021
P.S Kapashera
07.05.2026
JUDGMENT
Case No. : 11967/2022 Date of commission of offence : 24.09.2021
Date of institution of the case : 06.10.2022
Name of the complainant : Hari Om Sharma
Jangid
Name of accused and address : 1. Shamshad Khan
S/o Sh. Nouse Khan
R/o DDA Flat No.
90, Camp 3,
Nangloi, New
Delhi.
2. Mahesh Bansal
S/o Jagdish Rai
R/o 88P, 2nd Floor,
South City-1,
Gurugram,
HR, DLF,
Gurugram, Haryana.
Offence complained of or proved : U/s 33 & 52(2)
Delhi Excise Act &
482 IPC.
Plea of the accused : Pleaded not guilty Final order : Accused No. 1 State Vs. Shamshad Khan & Anr. Page No.1 / 20 Acquitted Accused No. 2 Acquitted Date of judgment : 07.05.2026 BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused
persons Shamshad Khan and Mahesh Bansal (hereinafter referred
to as the accused no. 1 and accused no. 2 respectively) , pursuant
to charge sheet filed qua them under Section 33 and 52 (2) of
Delhi Excise Act, 2009 (hereinafter the Delhi Excise Act) & 482
(Indian Penal Code) 1860 subsequent to the investigation carried
out at P.S: Kapashera, in FIR no. 357/2021.
2. It is the case of the prosecution that on 24.09.2021 at
about 07:15 a.m near Dwarka Link Road, Red Light, Samalkha,
New Delhi, within the jurisdiction of P.S: Kapashera, Delhi
within the jurisdiction of P.S: Kapashera, the accused Shamshad
Khan found driving one vehicle i.e. Tata Ace bearing registration
no. DL-1LM-0862 in which he was found containing 70 boxes of
illicit liquor our of which 40 boxes were found containing 50
quarters (total 2000 quarters) each having label of “Falcon Santra
Desi Sharab for sale in Haryana only 180 ml” and remaining 30
boxes were found containing 50 quarters (total 1500 quarters)
each having label of “Race 7 Metro Liquor for sale in Haryana
only 180 ml”, without any permit or licence and the accused
Mahesh Bansal being the owner of one vehicle i.e. Tata Ace
bearing registration no. DL-1LM-0862, allowed the vehicle to be
State Vs. Shamshad Khan & Anr. Page No.2 / 20
driven by accused Shamshad Khan in which he was found
containing 70 boxes of illicit liquor our of which 40 boxes were
found containing 50 quarters (total 2000 quarters) each having
label of “Falcon Santra Desi Sharab for sale in Haryana only 180
ml” and remaining 30 boxes were found containing 50 quarters
(total 1500 quarters) each having label of “Race 7 Metro Liquor
for sale in Haryana only 180 ml”, without any permit or licence
by using false number plate i.e. DL1LM0862 on the aforesaid
vehicle (Tata Ace) whereas the actual registration number of the
said vehicle was DL1LM2908, which was within your
knowledge. The same were seized by the police officials and
thereafter, an FIR was registered qua the accused. After
investigation, the police filed the present charge sheet against the
accused for commission of offence punishable u/s 33 and 52 (2)
of the Delhi Excise Act.
3. Complete set of charge sheet and other documents
were supplied to the accused persons. After hearing the
arguments, charge for offence punishable u/s 33 and 52 (2) of
Delhi Excise Act and u/s 482 IPC was framed qua the accused
persons to which they pleaded not guilty and claimed trial.
Further, the accused persons, vide their statement u/s 294 Cr.P.C,
had admitted the genuineness of copy of FIR no. 357/2021
alongwith certificate u/s 65B of Indian Evidence Act Ex A1
(colly), Details of the vehicle from Transport Department Ex. A2,
RC No. 206/21/21 Ex. A3, Report of chemical examiner having
no. SZD016047-SZD016066 dated 08.11.2021 Excise Control
Laboratory Ex. A4, CAF alongwith certificate u/s 65B of Indian
State Vs. Shamshad Khan & Anr. Page No.3 / 20
Evidence Act of mobile no. 9717334565 Ex. A5 (colly) and
verification report of documents of offending vehicle no.
DL-1LM-2908 Ex. A6 (colly).
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has
examined four witnesses in total.
5. PW-1 was Sh. Mukesh Bharti, who deposed that he
was appearing on behalf of MLO, Headquarter, Rajpura Road,
Delhi. He further deposed that as per their record, the registered
owner of the vehicle bearing no. DL1LM0862 Tata Motors
(Rinki Gupta wife of Dinesh Gupta from 04.11.2009 to
03.06.2016 and Sh. Jitender Kumar S/o Sh. Ramesh Kumar was
a registered owner of the abovesaid vehicle from 03.06.2016
about till date). He had brought the abovesaid record and
particulars of the abovesaid vehicle and as per their record, the
registered owner of the vehicle bearing no. DL1LM2908 Tata
Motors (Rajesh Kumar S/o Sh. Raj Kumar from 15.06.2010 to
01.02.2012 and Sanjay Lubricants NA Firm from the period
01.02.2012 to 05.04.2013 and Pawan Purta India (Firm) from the
period 05.04.2013 to till date) and he had brought the abovesaid
record and particulars of the abovesaid vehicle. Through him,
ownership record of vehicle bearing no. DL1LM0862 was
exhibited as Ex. PW1/A (colly) and ownership record of vehicle
bearing no. DL1LM2908 was exhibited as Ex. PW1/B (colly).
State Vs. Shamshad Khan & Anr. Page No.4 / 20
6. PW-2 was ASI Parveen Kumar Yadav, who deposed
that in the month of August 2022, the investigation of this case
was assigned to him for further investigation. During
investigation, he took the complete file of the Tempo bearing no.
DL1LM2908 from Transport Department as the owner was not
traceable. He further deposed that from that file, he got the
mobile number of the owner. Thereafter, he obtained the CAF of
the said mobile phone. It was found registered in the name of
accused Mahesh Bansal. Thereafter, he went to the house of
accused Mahesh Bansal and served upon notice u/s 41A Cr.P.C.
Thereafter, he served notice u/s 133 M. V Act upon accused
Mahesh Bansal. Further, accused Mahesh Bansal revealed that he
had sold the tempo to one person namely Rajesh but he has not
executed any document. Thereafter, the said PW further deposed
with respect to the investigation carried out by him at the spot.
Through him, notice u/s 41A Cr.P.C was exhibited as Ex. PW2/A
and notice u/s 133 of M. V Act was exhibited as Ex. PW2/B.
7. PW-3 was HC Hari Om, who deposed that on
24.09.2021, one secret informer met him in the morning at about
05.30 AM and stated that one TATA Ace would be transporting
illicit liquor and the same will be passing through Dwarka Link
Road and would be going towards Kapashera. He shared the
information with my I/C who directed me to form a raiding team.
Thereafter, he constituted a raiding team consisting himself, Ct.
Ravi Dutt, Ct. Raghuminder and Ct. Mohit. Thereafter, they left
their office at about 6.00 AM in private car carrying IO kit and
laptops etc. He further deposed that they reached Rajokri flyover
at about 06.45 AM where he requested public persons to join in
State Vs. Shamshad Khan & Anr. Page No.5 / 20
the raiding team but no one joined. Thereafter, they left towards
Dwarka Link Road at about 7.00 AM. Upon reaching there, they
took their positions and at about 7.15 AM, they saw one Tata Ace
coming from Dwarka Link road red light and was going towards
Kapashera PS side and the same was pointed out by secret
informer. After the signal, he stopped the said Tata Ace bearing
no. DL1LM0862 by placing his car in front of him. After
stopping of the said vehicle, he apprehended the driver whose
name was later on disclosed as Shamshad Khan. Thereafter, the
said PW further deposed with respect to the investigation carried
out by him at the spot. Through him, Form M-29 was exhibited
as Ex. PW1/A, seizure memo of illicit liquor was exhibited as
Ex. PW1/B, seizure memo of Tata Ace was exhibited as Ex.
PW1/C, seal handing over memo was exhibited as Ex. PW1/D,
rukka was exhibited as Ex. PW1/E, site plan was exhibited as Ex.
PW1/F, destruction order was exhibited as Ex. P1 (OSR) and
photograph was exhibited as Ex. P2.
8. PW-4 was ASI Jaipal, who deposed that on
24.09.2021, upon registration of FIR, the same was marked to
him and he reached the spot where he met HC Hari Om who
handed over him one Tata Ace containing illicit liquor and one
person namely Shamshad. In the meanwhile, Ct. Ravi Dutt
reached the spot and handed over him copy of FIR and original
rukka. Thereafter, the said PW further deposed with respect to the
investigation carried out by him at the spot. Through him,
interrogation report of accused Shamshad was exhibited as Ex.
PW4/A and notice u/s 41A Cr.P.C served upon accused
Shamshad was exhibited as Ex. PW4/B.
State Vs. Shamshad Khan & Anr. Page No.6 / 20
9. On account of admission of accused u/s 294 Cr.P.C,
PW at serial no. 1 Dr. Rajesh Joshi, PW at serial no. 2 concerned
Clerk, PW at serial no. 3 Concerned Officer, PW at serial no. 4
Nodal Officer Vodafone, PW at serial no. 5 W/HC Sushila and
PW at serial no. 6 Ct. Ravi Dutt, as per list of prosecution
witnesses were dropped from the list of prosecution witnesses
and the formal proof of the documents sought to be proved by
them was dispensed with.
10. No other PW was left to be examined, hence, P.E
was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
11. Statement of the accused persons u/s 281 Cr.P.C
read with Section 313 Cr.P.C. was recorded separately in which
all the incriminating circumstances appearing in evidence were
put to them. The accused persons controverted and denied the
allegations levelled against them and stated that they have been
falsely implicated in the case. Accused persons further opted to
not lead evidence in their defence, hence DE was closed.
FINAL ARGUMENTS:
12. Ld. APP for the State has argued that prosecution
witnesses have supported the prosecution case and their
testimonies 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 and 52(2) of Delhi Excise
State Vs. Shamshad Khan & Anr. Page No.7 / 20
Act and u/s 482 IPC has been proved beyond doubt.
13. Per contra, Ld. Counsel for accused persons has
stated that there is no legally sustainable evidence against the
accused persons and that the accused persons have been falsely
implicated by the police officials and the recovery of illicit liquor
has been planted upon them. Arguing further, Ld. counsel has
inter-alia submitted that no public witnesses were joined by the
police officials during investigation and no recovery photographs
were also taken on record by the investigating officer. It is further
argued that due to the lacunae and incoherency in the story of the
prosecution, accused persons be given the benefit of doubt and
are therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
14. Arguments adduced by Ld. APP for State and Ld.
Counsel for accused persons have been heard. The evidence and
documents on record have been carefully perused.
15. I have bestowed my thoughtful consideration to the
rival submissions made by both the parties. Accused persons
Shamshad Khan and Mahesh Bansal have been indicted for the
offence u/s 33 and 52(2) of Delhi Excise Act and u/s 482 IPC.
16. In order to prove the offence under Section 33 of the
Delhi Excise Act, the prosecution must establish the fulfillment
of all the essential ingredients of the offence. The contents of
Section 33 of the Delhi Excise Act are reproduced as follows:
State Vs. Shamshad Khan & Anr. Page No.8 / 20
“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 lath rupees.”
It is also significant to note that Section 52 of Delhi Excise Act
lays down a rebuttable presumption which goes as follows:
“Section 52. Presumption as to commission of offence in certain
cases:
1. In prosecution under section 33, it shall be presumed, until
the contrary is proved, that the accused person has committed
the offence punishable under that section in respect of any
intoxicant, still, utensil, implement or apparatus, for the
possession of which he is unable to account satisfactorily.
2. ………”
17. It is trite law that the burden always lies upon the
prosecution to prove its case beyond reasonable doubt on the
basis of acceptable evidence and that the law does not permit the
court to punish the accused on the basis of moral conviction or
on account of suspicion alone. Also, it is well settled that accused
State Vs. Shamshad Khan & Anr. Page No.9 / 20
is entitled to the benefit of every reasonable doubt in the
prosecution story and such doubt entitles him to acquittal. The
words “for the possession of which he is unable to account
satisfactorily” used in Section 52(1) of the Delhi Excise Act
clearly reveal that as a pre-requisite for the presumption under
the aforesaid provision being raised against the accused, it is
imperative for the prosecution to successfully establish the
recovery of the said alleged articles from the possession of the
accused. It is only after the prosecution has proved the possession
of the alleged articles by the accused, that the accused can be
called upon to account for the same. However, as discussed
hereinafter, careful scrutiny of the evidence placed on record
brings to light the fact that the case of the prosecution is fraught
with multiple inconsistencies, rendering the prosecution version
incredible, owing to which, no presumption, as provided for
under Section 52 of the Act, can be raised against the accused in
the present case.
i). Doubtful Seizure Memo and Form M-29.
18. A careful reading of the testimony of PW-3 and
PW-4 reflects that HC Hari Om had seized the illicit liquor vide
seizure memo Ex. PW1/C and filled in the form M 29 Ex.
PW1/A, all at the spot and thereafter, had prepared the rukka Ex.
PW1/E and handed over the same to Ct. Ravi Dutt, for
registration of FIR. The narration of such a chronology of events
leads to the irresistible conclusion that the seizure memo and
Form M-29 were prepared at the spot, prior to the rukka being
sent to the police station for registration of the FIR and that the
FIR was, therefore, admittedly registered after the preparation of
State Vs. Shamshad Khan & Anr. Page No.10 / 20
it. Accordingly, it follows that the number of the FIR would have
come to the knowledge of the investigating officer only after a
copy of the FIR was brought to the spot by Ct. Ravi Dutt. Thus,
ordinarily, the FIR number should not find mention in seizure
memo and Form M-29, which came into existence before
registration of the FIR. However, quite surprisingly, perusal of
seizure memo and Form M-29 reflects the mentioning of the full
particulars of the FIR thereupon, which fact has remained
unexplained on behalf of the prosecution. It is not even the case
that the same, on the face of it, appears to have been written in
separate ink or at some left over space. Rather, it appears to have
been recorded in same continuity, handwriting and ink as rest of
the contents of these documents. No explanation from the
prosecution is forthcoming as to how the FIR number surfaced
on a document which was prepared prior to the registration of the
FIR. This fact casts a fatal doubt upon the case of prosecution.
19. Moreover, seizure memo is a typed document. If
same was prepared at the spot, it should not be in printed and
typed format. Moreover, in this case sample was not drawn from
each and every bottle. Therefore, it is not clear whether in
remaining bottles there was the liquor or not. In this matter,
sampling ought to be drawn from each and every recovered
bottle. However, same has not been done and this becomes the
ground of the benefit of doubt.
20. At this stage, reference may be made to the decision
of the Hon’ble High Court of Delhi in Lalit v. The Delhi
State Vs. Shamshad Khan & Anr. Page No.11 / 20
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.”
21. Similarly, in paragraph 4 of Mohd. Hashim vs State,
82 (1999) DLT 375, the Hon’ble High Court of Delhi observed:
“…Surprisingly, the secret information (Ex. P.W. 7/A)
received by the Sub-Inspector Narender Kumar Tyagi (P.W. 7),
the notice under S. 50 of the Act (Ex. P.W. 5/A) alleged to
have been served on the appellant, the seizure memo (Ex. P.W.
1/A) and the report submitted under S. 57 of the Act (Ex. P.W.
7/D) bear the number of the FIR (Ex. P.W. 4/B). The number
of the FIR (Ex. P.W. 4/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 circumstances number of the FIR
(Ex. P.W. 4/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. P.W. 4/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 dealState Vs. Shamshad Khan & Anr. Page No.12 / 20
of doubt about recovery of the contraband in the manner
alleged by the prosecution.”
22. The aforesaid rulings of the Hon’ble High Court of
Delhi squarely apply 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 documents were 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.
ii). The non-joining of any independent / public witness.
23. 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, IO had even asked a few public persons to join the
investigation, however, all of them refused to join the
investigation and left the spot. Further, admittedly no notice was
served to any such public person upon their refusal to join the
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 Vs. 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 raidingState Vs. Shamshad Khan & Anr. Page No.13 / 20
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.”
24. 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.
4. 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 admittedly the
independent witnesses were available at the time of recovery
but they refused to associate themselves in 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 non-joining the
witnesses from the public is an after thought and is not worthy
of credence. All these facts taken together make the
prosecution case highly doubtful.”
State Vs. Shamshad Khan & Anr. Page No.14 / 20
25. 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, non-compliance of the mandatory
provisions of law, even though public witnesses were easily
available in the vicinity, makes the prosecution version highly
doubtful.
26. This Court is conscious of the legal position that
non-joining 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
observed above, 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 much needed
corroborative value, to the otherwise uncompelling case of the
prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
27. As per rukka Ex. PW1/E after sealing the case
property and the samples of illicit liquor with seal of ‘HO’, the
State Vs. Shamshad Khan & Anr. Page No.15 / 20
aforesaid seal was handed over to Ct. Ravi Dutt. However, Ct.
Ravi Dutt 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
IO had made efforts to handover the seal to any independent
witness. Further, though handing over memo is on record,
however, there is no taking over memo to show the genuineness
of fact of actual taking over of seal by IO from Ct. Ravi Dutt. In
such a factual backdrop, since the seal was given to Ct. Ravi
Dutt, 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.
28. In this regard, judgment in case titled as Ramji
Singh Vs. 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 Officer-Hoshiar 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.”
State Vs. Shamshad Khan & Anr. Page No.16 / 20
29. 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 seealed 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…”….
11. It is nowhere the case of the prosecution that the seal after
use was handed over to the independent witness P.W.5. Even
the I.O. P.W.7 does not utter a word regarding the handing
over of the seal after use. Therefore, 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.
iv). Other infirmities in the prosecution case.
30. Furthermore, the possibility of planted recovery
upon the accused, further gains strength from the fact that the
police did not bother at all to discover the source of illicit liquor
or to further enquire about the potential customers of the same.
31. There is no gainsaying that if two reasonably
probable and evenly balanced views of the evidence are possible,
one must necessarily concede to the existence of a reasonable
doubt. The aforementioned lacunae in the story of the
prosecution render the version of the prosecution doubtful,
leading to the irresistible conclusion that the burden of proving
State Vs. Shamshad Khan & Anr. Page No.17 / 20
the guilt of the accused beyond reasonable doubt has not been
discharged by the prosecution. Thus, this Court is of the opinion
that the prosecution has failed to bring on record any cogent
evidence in order to prove the commission of and guilt of the
accused Shamshad Khan for offence u/s 33 of Delhi Excise Act
beyond reasonable doubt, thus, entitling the accused Shamshad
Khan to benefit of doubt and acquittal.
32. Now as far as Accused Mahesh Bansal is concerned,
he is charged for an offence under section 52(2) of Delhi Excise
Act.
Section 52(2) of Delhi Excise Act provides that:-
‘Where any animal, vessel, cart or other vehicle is used in
the commission of an offence under this Act, and is liable to
confiscation, the owner thereof shall be deemed to be guilty
of such offence and such owner shall be liable to be
proceeded against and punished accordingly, unless he
satisfies the court that he had exercised due care in the
prevention of the commission of such an offence’.
33. The bare perusal of the provision provides for a
consequence when any animal, vessel, cart or other vehicle is
used in the commission of an offence under the Delhi Excise Act.
So, to invoke this section it is essential that, first the commission
of an offence under Delhi Excise Act must be proved to have
been committed, thereby, it can be safely said that commission of
an offence under Delhi Excise Act is sine non qua to hold any
person guilty of an offence under section 52(2) of Delhi Excise
Act. But as discussed earlier that since no culpability could be
attributed towards accused Shamshad Khan, consequently
State Vs. Shamshad Khan & Anr. Page No.18 / 20
accused Mahesh Bansal is also liable to be acquitted.
34. Now as far as Accused Shamshad Khan is
concerned, he is charged for an offence under section 482 IPC.
Section 482 IPC provides that:-
482. Punishment for using a false property mark.–
“Whoever uses any false property mark shall, unless
he proves that he acted without intent to defraud, be
punished with imprisonment of either description
for a term which may extend to one year, or with
fine, or with both”.
It is pertinent to mention here that in this matter
there are mere allegations of using of fake number plate. But the
same has not been substantiated with the seizure of fake number
plate. Perusal of record is reflecting that alleged fake number
plate was not seized during the investigation and was never
produced before this Court despite being the case property. In
such situation, accused is entitled for the benefit of doubts.
35. Accordingly, this Court hereby accords the benefit
of doubt to the accused persons for the offence u/s 33 and 52(2)
of Delhi Excise Act and holds the accused not guilty of
commission of the said offence. Accused Shamshad Khan and
Mahesh Bansal are thus, acquitted of the offence u/s 33 and 52(2)
of Delhi Excise Act and u/s 482 IPC.
36. Copy of this judgment be given free of cost to the
accused.
State Vs. Shamshad Khan & Anr. Page No.19 / 20
Announced in the open court
on 07.05.2026, in presence of
accused and Ld. Counsel for Digitally signed
by ROHIT
accused. ROHIT KUMAR
KUMAR Date:
2026.05.05
15:46:20 +0530
(ROHIT KUMAR)
JMFC-10/Dwarka Courts/07.05.2026
It is certified that this judgment contains 20 pages,
Digitally signed
all signed by the undersigned. ROHIT by ROHIT
KUMAR
KUMAR Date: 2026.05.05
15:46:26 +0530
(ROHIT KUMAR)
JMFC-10/Dwarka Courts/07.05.2026
State Vs. Shamshad Khan & Anr. Page No.20 / 20
