Delhi District Court
9 Am vs . on 22 December, 2021
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 106/18
Police Station Domestic Airport
Under Section(s) 25 Arms Act
Cr. Case no. 14634/2019
CNR no. DLSW020412532019
IN THE MATTER OF:
State ...........Prosecution
Vs.
Shashank Kumar
S/o Sh. Ashok Kumar
R/o Sidharth Vihar, Tarli Kandoli,
Dehradun, Uttarakhand ...............Accused
1. Name of complainant : Dinesh Kumar
2. Name of accused : Shashank Kumar
3. Offence complained of : Under Sections 25,
The Arms Act, 1959.
4. Plea of accused : Not guilty
4. Date of commission of offence : 08.12.2018
5. Date of institution of case : 09.08.2019
6. Date of reserving judgment : 04.12.2021
7. Date of pronouncement : 22.12.2021
8. Final judgment : Acquitted
State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.1/19
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offence punishable u/S 25 of The Arms Act, 1959 (hereinafter referred to as 'Act').
2. Adumbrating the factual matrix, the prosecution has alleged that the accused was scheduled to travel from Terminal 1D, Domestic Airport, New Delhi to Kolkata by Indigo flight no.6E634 on 08.12.2018. When his checkin baggage under the tag no.6E537496 appeared for screening at Level2 at about 1:19 am, one suspicious ammunition was detected in the said baggage on the screening image. Thereafter, the said baggage was referred to Level4 for physical check by the complainant Dinesh Kumar, Associate, DIAL Security and Vigilance, Terminal1D. During the physical search of said baggage belonging to the passenger Shashank Kumar at Level4 at 3:34 am, one undeclared ammunition was recovered in the presence of accused and Airline Staff namely Vineet. The accused was asked to produce valid documents for carrying the said ammunition but he could not produce any such document. Subsequent thereto, the accused was taken by the complainant to PS Domestic Airport for further course of action, where he lodged a complaint in respect of the present case. Upon inspection of the said ammunition, it was found to be live and sketch thereof was prepared. The length and diameter of the ammunition was noted to be 3.2 cm and 1.0 cm respectively and further, 'KF 32S&WL' was engraved on its base. The said ammunition was then kept in small plastic container and one parcel was prepared which was sealed with the seal of '10 DOM.AIRPORT'. The sealed parcel was seized vide seizure memo, FSL form was filled and the seal was handed over to MHC (M). The FIR was registered on the basis of the complaint, the accused was interrogated and his State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.2/19 arrest was deferred. The accused could not produce any valid arms licence. During further investigation, statements of witnesses under Section 161 Cr. P. C. were recorded and the FSL report was collected according to which the said ammunition was opined to be an ammunition as defined in Arms Act, 1959. Upon the culmination of investigation, permission under Section 39 of Act was obtained from DCP, IGI Airport. Finally, the chargesheet was filed against the accused in court.
3. Cognizance was taken of offence u/S 25 of the Act and the accused was summoned to face trial for said offence. On his appearance, the copy of chargesheet was supplied to accused in compliance with Section 207 Cr. P. C.
4. On the basis of material filed along with chargesheet, charge was framed against the accused for offence u/S 25 of Arms Act to which he pleaded not guilty and claimed trial. The accused admitted the recording of FIR registered on 08.12.2018, DD no.3B dated 08.12.2018 and the FSL report dated 02.07.2019 under Section 294 of Cr. P. C. and consequently, PW Ct. Rajesh and PW Avinash Srivastava were dropped from the list of witnesses and the FIR was marked as Ex. A1, DD no.3B as Ex. A2 and FSL report as Ex. A3 vide court order dated 07.04.2021.
5. In order to bring home the guilt of accused, the prosecution examined as many as seven witnesses. PW1 Vineet Kumar Jain (the recovery witness) stated that he worked with Indigo Airline as Customer Service Executive. On 08.12.2018, he was on duty at Boarding Gate when he received a call to reach Level4, Baggage Makeup Area. He reached at Level4 along with one CISF staff member where he met Dinesh Kumar, the complainant, who was already present there. The complainant inquired the passenger Shashank Kumar (accused) about the baggage he was carrying but Shashank Kumar denied about State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.3/19 carrying any ammunition in his baggage. Thereafter, the bag was opened in the presence of accused and upon checking, it was found containing one cartridge. The CISF staff handed over the acused to vigilance who in turn handed him over to the police officials at police station. This witness could not identify the accused present in the court during trial.
6. In his crossexamination, the witness could not state the name of the CISF official who had gone alongwith him. He stated that he had received the call from Baggage Makeup Area to reach at Level4 but could not tell the name of person who called him to Level4. He admitted that at the time of boarding, the checkin baggage proceeds for screening separately from the passengers and at the time of screening of the said baggage on the screening belt, the passenger is not present. He clarified that whenever something suspicious is detected during the screening of baggage, the passenger is called at Baggage Makeup Area, Level4 and then the baggage is opened in presence of passenger. He also admitted that Level4 is under the surveillance of CCTV cameras. He further stated that when he reached the spot, Dinesh Kumar, accused and CISF staff were present. He stated that he had told the IO about CISF staff who had accompanied him to the spot. However, all the other material suggestions were refuted by him and he denied that he did not join any recovery proceedings qua the accused. With the permission of Court, the witness was also reexamined by prosecution and at that stage, he produced his identity card and Airport Entry Pass copy of which are Ex.PW1/A1 (colly) (OSR). He also admitted that he had given an application to police officials on 08.12.2018 which is Ex.PW1/A. The witness was not crossexamined after reexamination despite opportunity.
7. PW2 Dinesh Kumar (complainant) deposed that on 08.12.2018, he was working as a Screener (Designation Associate) at DIAL Security and State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.4/19 Vigilance Department, Terminal1D, Domestic Airport, Delhi. On the said day at around 02:00 to 02:30 am, during the screening at Level2, he found a baggage containing a suspicious ammunition. Thereafter, he saved the image of screening of baggage and noted down the baggage ID. He informed the next level i.e. Level3, whereafter the baggage was sent to Level4 for physical checkup. He called the concerned Indigo Airline about the said baggage. After sometime, the Indigo Airline Staff and the passenger reached the spot. Further, he reverified that the said baggage belonged to the passenger Shashank Kumar. He inquired the accused about baggage and the accused accepted that the said bag was packed by himself. The accused was then asked to open the said baggage in his as well as the presence of CISF staff. When the bag was opened, he took it into his custody to physically check the same and it was found containing one undeclared live ammunition. Thereafter, the accused was taken alongwith his bag to police station where the IO interrogated the accused. The witness could not identify the accused. However, he correctly identified the case property i.e. one fired ammunition bearing FSL 2018 F11804 'A1' which is Ex.P1.
8. The said witness did not support the prosecution in respect of certain facts and thus, the prosecution was granted permission by the Court to ask questions to the witness in the nature of crossexamination. At that stage, the witness admitted to giving the complaint Ex.PW2/A at police station. He further admitted that the sketch of the ammunition was prepared in his presence which is Ex.PW2/B and which was further seized by the IO in his presence vide seizure memo Ex.PW2/C. He further stated that he had handed over the copy of printout of the screening image of the baggage to IO which is Mark X. When the Ld. APP pointed towards the accused for his identification, the witness State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.5/19 answered in affirmation.
9. In his crossexamination, PW2 Dinesh Kumar stated that he had immediately informed at Level3 and Level4 about the suspicious ammunition in the baggage when he saw it. He reached at Level4 at about 03:45 to 04:00 am. Further, he stated that at the time when he physically checked the baggage, there were DIAL staff, Airlines staff, CISF staff present alongwith him and the accused but he could not recall the name of those staff members. He also admitted that the CCTV cameras are installed at Level4 and no videography was done of the process of physical checking of the baggage. He stated that he reached police station alongwith the accused and Indigo Airline Staff namely Mr. Vineet. He further stated that the FIR was registered after he had left the police station. He admitted the suggestion that the IO had prepared all the documents while sitting at police station on that day itself. He denied the suggestion that he did not ask the accused to open his baggage or about any document of the alleged ammunition as there was no such ammunition in his baggage. He also denied that the alleged ammunition was planted upon the accused.
10. PW6 HC Yashbir Kumar, the official from DCP Office, IGI Airport, Delhi brought the sanction letter dated 29.07.2019. The original sanction letter is on record as Ex.PW6/A bearing signatures of Sh. Sanjay Bhatia, the then DCP, whose signatures were identified by the witness as he stated that he had seen him writing and signing during the regular course of his duties. In his crossexamination, he stated that he has been working at SO Branch, DCP Office since 2016. He denied that the sanction letter is forged and fabricated but he admitted that he did not have any personal knowledge about the present case.
State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.6/19
11. The remaining are formal witnesses. PW3 HC Narender MHC (M), proved that the case property was deposited in Malkhana vide entry no.486 in register no.19 tendered as Ex.PW3/A (OSR). PW4 ASI Parmanand proved the Road Certificate Ex.PW4/A (OSR) vide which the exhibits of the present case were sent to FSL Rohini on 20.12.2018 through PW5 Ct. Balwan Singh and after depositing the same, the acknowledgement slip Ex.PW4/B (OSR) was handed over by PW5 Ct. Balwan Singh to PW4 ASI Parmanand. PW3 HC Narender was not crossexamined by the accused despite opportunity. Furthermore, formal suggestions were put to PW4 ASI Parmanand and PW5 Ct. Balwan Singh which were denied by them.
12. PW7 ASI Rajesh Kumar (the IO of present case) deposed that the complainant had come along with accused to police station on 08.12.2018 and given a written complaint Ex. PW2/A alongwith enclosed documents as well as one live ammunition and the accused was handed over to him whose name was disclosed to be Shashank Kumar. The said live ammunition was stated to be recovered from the possession of accused. Upon inquiry, the accused could not produce any valid licence or document regarding the same. Thereafter, the said live ammunition was taken in his custody and he prepared the sketch Ex.PW2/B and got the tehrir prepared which is Ex.PW7/A and which was then endorsed vide Ex.PW7/B by Duty Officer. Thereafter, the live ammunition was sealed and seized vide seizure memo. The accused was released upon an undertaking given by him as Ex.PW7/C and the undertaking of his maternal brother namely Tarun Kumar tendered as Ex.PW7/D. During the course of investigation, the FSL report and sanction under Section 39 of Arms Act were obtained. He also identified the case property Ex.P1. He further collected the boarding pass of the passenger, xray image of ammunition and BCAS Circular no.8/2017 from the State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.7/19 complainant which are collectively Ex.PW7/E. Upon issuing a letter under Section 91 Cr. P. C. Ex.PW7/F, he further obtained the passenger flight manifest from Manager, Indigo Airlines alongwith Certificate under Section 65B of Indian Evidence Act which is Ex.PW7/G (colly).
13. PW7 ASI Rajesh Kumar was crossexamined by the accused at length. He admitted that he did not recover the ammunition from the accused in his presence, that he did not visit the spot of incident, that he did not give any notice to any official to procure the CCTV footage of spot, that he did not investigate the fact of recovery from any CISF staff who were allegedly present at the spot and lastly, that he got the present case registered against the accused solely on the statement of complainant.
14. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to him. The accused cotroverted the material facts and further expressed ignorance about certain other facts as he stated either that he did not know or that it was a matter of record. Nevertheless, he admitted that after he and the Indigo Airline Staff reached the spot, the baggage over there belonged to him but he denied that he was ever inquired about any ammunition. He stated that he was asked by the Flight Attendant to come along to the police station but none of his baggage was taken to the police station. When asked about the ammunition at police station, he denied having any knowledge about the same. He added that he was going to Kolkata for his US visa interview and that there was no reason he would carry the alleged ammunition with him. The accused submitted that he did not intend to lead defence evidence. Accordingly, defence evidence was closed and the matter was taken up for final arguments.
State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.8/19
15. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The statements of PW1 Vineet Kumar Jain and PW2 Dinesh Kumar are consistent with each other so as to prove the fact of recovery of ammunition from the baggage of accused. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused be convicted of alleged offence.
16. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on various grounds. He has argued that both PW1 Vineet Kumar Jain and PW2 Dinesh Kumar could not identify the accused and further there is no CCTV footage on record even though the spot of incident was under
CCTV surveillance. There is a difference in the time mentioned in the FIR and the deposition of PW2 Dinesh Kumar. No other DIAL staff, Airline staff or CISF staff who were allegedly the witness to recovery have been examined by prosecution. Moreover, the IO never visited the spot of incident which raises the question on the propriety of investigation and veracity of prosecution case. Apparently, the baggage from which the ammunition was recovered has not been seized by the IO. Alternatively, it is contended that the accused could not be stated to have been in conscious possession of the alleged ammunition as no fire arm was recovered. In that regard, the Ld. Counsel for accused has relied upon the judgment of Divya Sharma Vs. State, 2019 (1) LRC 712 (DEL) of the Hon'ble High Court of Delhi, Chan Hong Saik Vs. State and another Crl. M. C. 3576/2011 and Crl. M.A. no.12699/2011 of Hon'ble High Court of Delhi, Sonam Chaudhary Vs. The State (Govt. of NCT of Delhi) Crl. M. C. 471/2016 of Hon'ble High Court of Delhi and Mandeep Lamba Vs. The State (Govt. of NCT of Delhi) Crl. M. C. 1633/2017 of Hon'ble High Court of Delhi.
State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.9/19
17. Arguments heard. Record perused. Considered.
18. Before embarking upon the appreciation of evidences, it would be apposite to reproduce the provisions of Section 3(1) read with Section 25(1B)(a) of the Act qua which the accused has faced trial: "25. Punishment for certain offences. --
(1B) Whoever
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or...
...shall be punishable with imprisonment for a term which shall not be less than [one year] but which may extend to three years and shall also be liable to fine: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than [one year]."
"3. Licence for acquisition and possession of firearms and ammunition.―1 [(1)] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder."
19. Thus, any person who acquires or possesses any firearm or ammunition without holding arms licence issued according to law is liable to be punished under the abovementioned provisions of Act. As a corollary, the court shall convict the accused only once the prosecution proves the following elements:
(a) that the firearm or ammunition is recovered from the possession of accused.
State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.10/19
(b) that the possession of such firearm or ammunition by accused is conscious, meaning thereby that the accused has knowledge thereof.
(c) that such firearm or ammunition is one covered under the category of Arms Act.
(d) that the accused does not hold any valid licence for possessing such firearm or ammunition.
20. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts under Section 101, The Indian Evidence Act, 1872. Thus, the prosecution is under a bounden duty to prove all these points on the aforesaid standard. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution 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."
21. The core ingredient of the offence qua which the accused has been charged is 'possession'. The possession of firearm or ammunition under the Act has been explained by the Constitution Bench of Hon'ble Supreme Court in the case of Gunwantlal Vs. The State of Madhya Pradesh AIR 1972 SC 1756 as under: "The possession of a firearm under the Arms Act in our view must have, firstly the element of consciousness or knowledge of that possession in the person charged with such offence and secondly where he has not the actual physical possession, he has nonethe State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.11/19 less a power or control over that weapon so that his possession thereon continues despite physical possession being in someone else. If this were not so. then an owner of a house who leaves an unlicensed eun in that house but is not present when it was recovered by the police can plead that he was not in possession of it even though he had himself consciously kept it there when he went out. Similarly, if he goes out of the house during the day and in the meantime someone conceals a pistol in his house and during his absence, the police arrives and discovers the pistol he cannot be charged with the offence unless it can be shown that he had knowledge of the weapon being placed in his house. And yet again, if a gun or firearm is given to his servant in the house to clean it, though the physical possession is with him nonetheless possession of, it will be that of the owner. The concept of possession is not easy to comprehend as writers of (sic) have had occasions to point out. In some cases under Section 19(1)(f) of the Arms Act, 1878 it has been held that the word "possession" means exclusive possession and the word "control" means effective control but this does, not solve the problem. As we said earlier, the first precondition for an offence under Section 25(1)(a) is the element of intention, consciousness or knowledge with which a person possessed the firearm before it can be said to constitute an offence and secondly that possession need not be physical possession but can be constructive, having power and control over the gun, while the person to whom physical possession is given holds it subject to that power and control. In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the defacto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In this view it is difficult at this stage to postulate as to what the evidence will be and we do not therefore venture to speculate thereon. In the view we have taken, if the possession of the appellant includes the constructive possession of the firearm in question then even though he had parted with physical possession on the date when it was recovered, he will nonetheless be deemed to be in possession of that firearm."
22. In the instant case, the material witnesses whose testimony ought to be first scrutinized to determine the question of possession are PW1 Vineet Jain State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.12/19 and PW2 Dinesh Kumar as the recovery proceedings allegedly took place in their presence. The primary defence raised by accused is that no ammunition was recovered from his baggage and in fact, he was never enquired about it at the Airport by complainant. Now, PW1 Vineet Jain, who was the Executive at Indigo Airline, has merely stated in his evidence that he was called at Level4 on 08.12.2018 whereafter he reached along with one CISF official and met Dinesh Kumar; Dinesh Kumar enquired the passenger Shashank Kumar about the baggage, the same was opened in his presence and it was found containing one ammunition.
23. It is noteworthy that PW1 Vineet Jain could not identify the accused in court and it has remained unaccounted on what basis he could tell the name of passenger as Shashank Kumar. It is not explained who told him the name of passenger as Shashank Kumar. Furthermore, he failed to tell the name of CISF official who had accompanied him to Level4. He also did not know the name of person from Baggage Makeup Area who had called him to reach there. It is not even the case of prosecution that the accused was accompanied by him to Level4 as he stated in his crossexamination that the accused was already present over there when he reached. His disposition of selectively naming the passenger without there being any justifiable ground on record, even while failing to recall the name of other officials of CISF and baggage make up area rouses skeptism of this Court in accepting his testimony.
24. Besides thereto, the PW2/complainant Dinesh Kumar stated in his crossexamination that when he checked the baggage, the DIAL staff, CISF staff, Airline Staff and accused were present but he did not remember the names of either of the staff members. However, further in his crossexamination, he explicitly named Vineet Jain as the person from Indigo Airlines who had State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.13/19 accompanied him to police station. This manifests that Vineet Jain was not named by PW2 Dinesh Kumar as the person from Indigo Airlines who was present at the spot even though he was aware about his name, thereby rendering the presence of Vineet Jain during recovery altogether dubious.
25. Further, PW1 Vineet Jain stated that he gave an application Ex. PW1/A to the concerned SHO which records that one ammunition was recovered in his presence from Shashank Kumar. But it is not explicable whether the statement was given before the registration of FIR or thereafter. As such, not much weight can be attached to his previous statement Ex.PW1/A. All these circumstances adversely impact the credibility of PW1 Vineet Jain and raise a reasonable doubt over his witnessing any such recovery proceeding.
26. What remains is the evidence of PW2 Dinesh Kumar. Quite significantly, even he could not identify the accused during his examinationin chief. With the permission of court, Ld. APP had put questions in the nature of crossexamination to the witness and pointed out to the accused present in court for enabling the witness to identify the accused. Although the witness identified the accused upon such lead, nevertheless, such identification cannot be relied upon in the opinion of this court because the credibility of such statement diminished once the witness could not identify accused out of his own accord.
27. In addition to this, no Test Identification Parade was ever conducted in the present matter and the statement came to be given before the court after over two years since the date of incident. Reference here is made to the judgment of Hon'ble Supreme Court in Munshi Singh Gautam Vs. State of M.P. (2005) 9 SCC 631 wherein it is held that evidence of mere identification of accused at trial for the first time is of feeble nature. The relevant paragraph is quoted as hereiunder: State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.14/19 "17. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
28. In the present case, no ground is made out for this Court to infer that the testimony of PW2 Dinesh Kumar qua the identification of accused falls under any of such exceptions, particularly when he failed to identify the accused in the first instance itself. Accordingly, his evidence of identifying the accused at the stage of crossexamination by prosecution is liable to be brushed aside. Apart from this, the rest of statement of PW2 Dinesh Kumar seems to be a State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.15/19 vague narration of alleged incident. He stated that he had saved the screening image of the baggage and noted down the baggage ID. But no such document where he had so noted down the baggage ID has been produced in evidence. In fact, the screening image Mark X which was enclosed with his complaint Ex.PW2/A alongwith certificate under Section 65B of Indian Evidence Act has not been proved as the said certificate has not been tendered in evidence by its maker. Even if the said screening image is assumed to have been proved, it would be of little consequence because there is no baggage ID or any other number mentioned on the screening image.
29. PW2 Dinesh Kumar further stated that he had reverified the baggage with the boarding pass of the passenger. Although the boarding pass of accused is enclosed with the complaint Ex.PW2/A, but it has not come on record as to when and by whom the said boarding pass was seized from accused. There is also no documentary evidence in the form of seizure list regarding the same on record. Accordingly, it cannot be deciphered from his evidence as to how he concluded that the screening image belonged to the checkin baggage of accused. Furthermore, there is no evidence on record regarding when and by whom the accused was contacted to reach at Level4. It is not the case of either PW1 Vineet Jain or PW2 Dinesh Kumar that they had called the accused to reach at the spot. No other person has been made witness by the prosecution to depose about the said material fact and in fact, it seems that no inquiry has been made by the IO on that aspect.
30. In such an event, it remains ambiguous as to how PW2 Dinesh Kumar could tell the name of the passenger as Shashank Kumar since he neither could identify him nor could produce any chain of documents linking the screening image with his boarding pass and baggage. This ambiguity is strengthened by the State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.16/19 fact that the baggage itself has not been seized, much less produced, which could have afforded one opportunity to the witness to identify the baggage in Court. This is not the case where the alleged ammunition was taken from the physical possession of the accused while the bag was with him, rather, the checkin baggage had gone for screening separate from the accused and thus, it was imperative on the part of prosecution to tender the said baggage in evidence. No attempt having been made in that direction constrains the Court in light of Section 114, illustration (g) of the Indian Evidence Act to presume that the prosecution has withheld the best available evidence from Court, which if produced, would have been unfavourable to prosecution.
31. Going further, the statement of PW2 Dinesh Kumar is also fraught with certain material inconsistencies. According to his statement, he had taken the acused alongwith the bag to police station. However, no such mention is there in his statement Ex.PW1/A and as per the said statement, only one ammunition was handed over to the concerned SHO for appropriate action. Further, the fact of handing over of such baggage is also conspicuously absent from DD no.3B dated 08.12.2018 Ex.A2 wherein it is mentioned that one live cartridge and the accused were produced at the police station on the said date.
32. Moreover, PW2 Dinesh Kumar has stated that the sketch of ammunition Ex.PW2/B was prepared by the IO and the ammunition was seized by him vide seizure memo Ex.PW2/C in his presence. Now, it has come in his crossexamination that he had left the police station before the registration of FIR and that he never went to the police station again thereafter. PW7/IO ASI Rajesh Kumar also admitted in his crossexamination that he had never visited the spot of incident. However, the sketch Ex.PW2/B and the seizure memo Ex.PW2/C record the FIR number which seems to be contrary to the statement State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.17/19 of PW2 Dinesh Kumar since according to him, he had signed those documents before the registration of FIR. The conjoint reading of his evidence in the backdrop of other evidence on record makes his reliability impeachable in the absence of corroboration.
33. Further throwing the prosecution case from frying pan into the fire is the conduct of defective investigation in present case. It would be rather safe to say that there has been no investigation at all in true sense, let alone defective investigation. At the cost of reiteration, it may be observed that the IO never visited the spot of incident and made the entire case against the accused merely on the statement of PW2 Dinesh Kumar at the police station, which is highly deplorable. The CISF staff in whose presence the alleged recovery happened has not been examined. The CCTV footage of the incident has also not been procured despite being available. The baggage in question, which is the primary piece of evidence considering that the ammunition was recovered therefrom and its checkin ID was matched with the boarding pass so as to trace the passenger, has not been seized at all. At this juncture, it is pertinent to refer to the following observation in the judgment of Hon'ble Delhi High Court in Rattan Lal Vs. State (1987) 32 DLT 1:
"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 taw are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
34. The laxity shown on the part of IO to even visit the spot of incident to gather substantive evidence by conducting fair and proper investigation speaks volume about the partiality in inquiry undertaken by him. The IO has deliberately not complied with the basic rules of investigation, the benefit of State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.18/19 which must accrue to the accused. The entire case has been prepared solely on the statement of PW2 Dinesh Kumar but there is no other material evidence on record to corroborate his testimony. It is true that it is not the quantity but the quality of evidence that matters but in view of the reasonable doubts emerging in the evidence of PW2 Dinesh Kumar, it does not inspire confidence of this Court so as to rest the conviction of accused merely on its basis. As a sequitur thereto, the accused stands entitled to benefit of doubt.
35. The upshot of the foregoing discussion is that the prosecution has failed to establish the charge of Section 25 (1B) (a) of The Arms Act, 1959 against the accused owing to various loopholes in the conduct of investigation and substantial inconstitencies in the evidence of material witness PW1 Vineet Kumar Jain and PW2 Dinesh Kumar. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Shashank Kumar S/o Sh. Ashok Kumar R/o Sidharth Vihar, Tarli Kandoli, Post Chidowali, Dehradun, Uttrakhand has been acquitted of the offence punishable under Section 25 (1B) (a) of The Arms Act, 1959.
Pronounced in open court in the presence of accused on 22.12.2021.
(Bharti Garg) MM09/South West District Dwarka Court/New Delhi/22.12.2021 It is certified that this judgment contains nineteen pages and each page has been signed by the undersigned.
Bharti Garg) MM09/South West District Dwarka Court/New Delhi/22.12.2021 State Vs. Shashank Kumar CNR no.DLSW020412532019 Page no.19/19