Delhi District Court
State vs . : Joginder Nath Sahni on 12 April, 2013
IN THE COURT OF MS. RAVINDER BEDI, CHIEF METROPOLITAN
MAGISTRATE, NORTH EAST, KARKARDOOMA COURTS : DELHI
State Vs. : JOGINDER NATH SAHNI
FIR No. : 534/2007
U/s : 9-B of the Explosives Act
PS : Seema Puri
JUDGEMENT
1 Sl. No. of the case : 23/08
2 Date of commission offence : 24.10.2007
3 Date of institution of the case : 22.10.2009
4 Name of the complainant : SI Ajeet Malik
Name of accused, parentage & : Joginder Nath Sahni S/o Shri
Address Fakir Chand SahniR/o: C 295,
5 Surajmal Vihar , Delhi.
Offence complained of or : 9-B of the Explosives Act
6 proved
7 Plea of the accused : Pleaded not guilty
8 Date reserved for order : 09.4.2013
9 Final order : Convicted
10 Date of Judgment : 11.04.2013
FIR NO. 534/07 page 1 of 12 pages
BRIEF REASONS FOR SUCH DECISION : -
1. Genesis of the prosecution case is that on 24.10.2007 at 6.10 pm at shop no. 3, A-3, Pathar Wali Gali, Dilshad Garden, Delhi accused Joginder Nath Sawhney was found having explosives, weighing 3015 Kg against the total sanctioned licence of 1100 Kg and had stored 1915 Kg of Explosives more than the permissible limit, thus committed an offence punishable under section 9-B of the Explosives Act 1884, (herein after "the Act"). Backdrop facts giving rise to the present case are as follows:-
2. On 24.10.2007, at about 4.45 pm, a secret informer gave information to SI Ajeet Malik at ARC office, R. K. Puram that a person named Joginder Nath Sahni was having unlicenced possession of varied types of fire works(crackers) in his Godown and if premises raided, the material could be found in the said Godown. SI Ajeet Singh shared the information with Inspector Jai Bhagwan and ACP Sanjay Tyagi. On verification, the information was found to be correct. A raiding party consisting of HC Rajender, Ct. Harish, Ct. Rajesh, Ct. Pradeep and Ct. Sushil under SI Ajeet was constituted, which along with informer left at about 5.15 pm and reached near Apsara Border red light signal. Four-five passersby were asked to join the proceedings but none of them agreed and went away without telling their names and addresses. Without wasting any further time, FIR NO. 534/07 page 2 of 12 pages the party reached the specified place i.e. shop no. 3, A-3, Dilshad Garden at about 6.10 pm and saw the accused who was found arranging the fire works cartons in his godown . On pointing out by informer, he was apprehended and on asking, told that he had licence to possess 1100 kg fire works, chinese crackers and 211 sparklers . The enire material was got weighed which came to be of 3015 Kg. i.e. 1915 in excess to the licenced strength.
It was seized and sealed with 'AM' and seal was handed over to HC Rajender after use. After completing necessary formalities, the charge sheet was filed before the court on 22.10.2008.
3. Accused was summoned and on his appearance was supplied with copies of charge sheet and other documents. On 24.11.2009, charge was framed against the accused for the offence under section 9 -B of the Explosives Act,1884 , to which accused pleaded not guilty and claimed trial.
4. The prosecution in order to substantiate its case has examined as many as six witnesses in all.
5. The statement of accused was recorded under section 281 Cr. PC, in which accused has denied all the allegations and has taken the plea of false implication. He stated that on 24.10.2007, a tempo came from M/s Kataria Fire works with the crackers of four parties i.e. Harsh Kumar of PS Jama Masjid, Sahni Di Hatti, Fakir Chand Sahni of Sadar Bazaar and Ravinder FIR NO. 534/07 page 3 of 12 pages Fire Works i.e. Shop of accused. He stated that while the fire works of accused were being unloaded at his shop, police team raided his shop. He explained to police party besides showing them invoices of all aforesaid four parties, but some altercation ensued between SI Ajeet Malik and accused and SI Ajeet Malik falsely implicated him. He stated that mark A to C were the bills of other parties, which were shown to the IO SI Ajeet Malik. Accused stated that he had returned the material belonging to other parties on indemnity bond. He pleaded his innocence and further pleaded his false implication.
6. Accused in his defence examined Subhash Chand Kataria, Harsh Kumar, Ram Prakash and Fakir Chand Sahni as DW1 to DW4 respectively.
7. I have heard Ld. APP for the State, Ld. Counsel for accused , perused the entire material on record carefully in the light of relevant statutory provisions of law.
8. The contention of defence is that nothing has come up on record against accused in support of allegations. It is argued that a false case was foisted on accused at the time when the material from tempo was being unloaded to different shops. It is argued that the statement of witnesses particularly that of PW2, PW3 and PW4 are contradictory in material particulars . It is argued that no Roznamcha entries were proved for FIR NO. 534/07 page 4 of 12 pages departure of raiding party, nor is there any material showing the crackers/fireworks ever weighed at Dharam Kanta. It is argued that the tempo driver being material witness to the occurrence is not made a witness by prosecution. It is argued that the entire proceedings of recovery search and seizure are hit by Section 100 of Cr.P.C and that no independent witness was joined. Ld. Counsel relied upon the authority reported in "Sonari @ Chamari Vs. State 34 (1988) DLT 124 . It is argued that police did not try to associate any public witness to the proceedings and thus the proceedings were highly doubtful.
9. Per contra Ld. APP for the State after referring to the testimony of witnesses and the documents proved by them during their depositions, contended that prosecution has fairly proved its case against the accused and accordingly he should be convicted and punished as per law. It is argued that evidence is clear and cogent and the minor deviations in the statement of witnesses do not corrode the credibility of prosecution case.
Let us have a glance at the evidence brought on record:
10. PW1 is Vijay Pal Singh, an employee of Explosive Department . He had brought the summoned case file of Licence No. E/NC/DL/24/38 (E 12089) which contained original letter of authority DE 68/E/E 12089. Ex. PW1/A , which shows the sanctioned licence to accused firm of 1100 kg FIR NO. 534/07 page 5 of 12 pages (fireworks of 100 kg and Chinese Crackers ,sparklers as 1000 kg).
11. PW2 is Ct. Sushil Kumar who stated that on 24.10.2007, he was posted at ARC Crime Branch, R. K. Puram. PW3 SI Ajeet Malik told them that a secret information was received about storage of illegal fireworks at Dilshad Garden, G.T. Road. A raiding party consisting of him, HC Rajender , Ct. Haneesh, Ct. Rajesh , SI Ajit Malik, Ct. Pradeep was organized and SI Ajeet Malik had briefed them. At around 5.15 pm, they left the office in two private vehicles and had reached at T point red light, Dilshad Garden along with SI Ajeet Malik. PW3 requested 4-5 passers bye to join the investigation but none had agreed and left without disclosing their names and addresses. Thereafter without wasting their time they reached at the spot i.e. shop no. 3, A-3, Patharwali gali, Dilshad Garden and conducted raid at shop at the instance of secret informer. PW2 states that accused was found present at shop and had shown them a licence of fireworks to storage of 1100 kg. Of fireworks only but PW3 became suspicious as the fireworks available in the shop were more than 1100 kg. Thus all fireworks were loaded in TATA 407 and sent to nearby Dharam Kanta for weighing and were found to be of 3015 Kg in weight, i.e. more than the prescribed limit. The firearms (excluding 1100 kg of prescribed limit) were sealed with the seal of 'AM' after wrapping in white cloth, after they were seized vide FIR NO. 534/07 page 6 of 12 pages seizure memo Ex. PW2/A. Seal after use was handed over to HC Rajender. PW3 prepared rukka and handed over to PW2 for registration of the FIR. PW2 is witness to the memos Ex. PW2/B and Ex. PW2/C.
12. PW3 is SI Ajeet Malik who has deposed on similar lines as deposed by PW2 Ct. Sushil Kumar. He prepared the rukka Ex. PW3/A. H.C Ajit Singh had also reached the spot who then prepared rough site plan at his instance. PW4 ASI Beer Sen on 24.10.2007 was posted at PS Seema Puri as duty officer from 4 pm to 12 pm. He has proved the copy of FIR Ex. PW4/A and the endorsement on the rukka Ex. PW4/B. PW5 HC Ajit Singh stated that on 24.10.2007, while posted at ARC Crime Branch , Sector 8, R. K. Puram, Delhi, he was present in the office and duty officer had told him that SI Ajeet Malik had apprehended one person with crackers and he was asked to reach the spot. He reached at the spot at about 10.30 pm at shop no. 3, A-3, Pathar Wali gali, Dilshad Garden, where PW3 SI Ajeet Malik had handed over the carbon copy of the FIR along with original rukka, recovered case property and the accused to him. He prepared the site plan Ex. PW5/A at the instance of SI Ajeet Malik and arrested the accused at about 11.30 pm vide arrest memo Ex. PW2/B and his personal search memo Ex. PW2/C. Thereafter he deposited the case property with the MHC(M). In the intervening night of 24/25.10.2007, he reached the office of ARC at about 2.00 am and recorded the statement of HC Rajender and Ct. Sushil Kumar. PW6 is HC Dinesh who had brought the register no. 19 vide which, he had deposited the case property of the present case at FIR NO. 534/07 page 7 of 12 pages malkhana PS Seema Puri vide entry no. 3389 dated 24.10.2007 exhibited as Ex. PW6/A.
14. In defence, accused examined DW1 Subhash Chand Kataria, who was running the business of fire works/crackers in the name and style of Kataria Fire Works and had a shop at Janakpuri and magazine at District:
Jhajjar Village: Dadritoy (Haryana). On 24.10.2007, he sent fire works/crackers to four shopkeepers from his Magazine in a tempo bearing no. DL 1CG 4292. The name of the shopkeepers were Harsh Kumar Fire works (Jama Masjid), Shri Fakir Chand Sahni & Sons( Sadar Bazar, Delhi), Sahni Di Hatti,( Dilshad Garden) and Ravinder Fire works ( Dilshad Garden). Carbon copies of Invoices were Ex. DW1/A and Ex. DW1/B. Another bill is in the name of Ravinder Fire works is Ex. DW1/C. Similar is the deposition of DW2 to DW4, who all were running shops of Fire works and stated that their fire works were sent by M/s. Kataria Fire works.
15. This court has considered the entire evidence and respective submissions and after mulling over the entire record , is of the opinion that the prosecution has fairly been able to establish charges against the accused. The contention of defence that no independent witness was joined at the time of seizure and recovery has to be rejected simply because it is not incumbent on the IO to join any public witness in pursuance of any FIR NO. 534/07 page 8 of 12 pages recovery to be effected . Reliance can be placed on the authority in State, Govt. NCT Delhi Vs. Sunil & Anr. 2000 VIII AD(SC) 613 wherein it was held by Hon'ble Supreme Court that there is no requirement in law either under section 27 of Indian Evidence Act or under section 161 Cr.P.C to obtain signatures of independent respectable persons of the locality on the statement made by the accused. It was held...........
"...........the legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by police is cast on the police officer when searches are made under chapter VII of the Code. Section 100(5) of the Code requires that such such search shall be made in their presence......................................".
It was further held that :
"........A search is made to find out a thing or document about which the searching officer has no prior idea. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. The Legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of locality is to ensure the safety of all such articles meddled with and to protect the FIR NO. 534/07 page 9 of 12 pages rights of persons entitled thereto".
In Transport Commissioner A.P., Hyderabad Vs. S. Sardar Ali (1983) 4 SCC 245 it was held:
.............."Section 100 of Cr.P.C deals with searches and not seizures. In the very nature of things when property is seized and not recovered during search , it is not possible to comply with provisions of Sub section (4) and (5) of Section 100 of Cr.P.C.
16. Therefore, the plea of counsel that no independent witnesses from public were joined has to be rejected. Another contention of defence is that the statement of witnesses contain discrepancies and are contradictory in material particulars. The contradictions pointed out are minor , small and insignificant. These are likely to happen after lapse of time and as such are to be ignored. In Surendera Singh Vs. State of Haryana, I (2006) SLT 430 it was held that it is well settled principle of law that every discrepancy in the statement cannot be treated as fatal to the prosecution case. The discrepancy which does not affect the prosecution case, materially, does not create an infirmity .
17. The plea of defence is that for non association of public witnesses and merely on testimony of all police officials, prosecution case is highly doubtful. I consider that this is not an infirmity sufficient to throw out the FIR NO. 534/07 page 10 of 12 pages prosecution case as it is very hard these days to get association of public witnesses in criminal investigation. Normally nobody from public is prepared to suffer any inconvenience for the sake of society. There is no presumption that the police witnesses are not credible witnesses . The testimony of every witness, whether from public or police, has to be judged as per its own merits. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and their testimonies cannot be rejected on the ground that they are official witnesses. (Jawahar Vs. the State decided on 23.03.2007 by Hon'ble Delhi High Court). I find no reason to disbelieve the testimony of police witnesses in the absence of evidence of any animosity or enmity .
18. From considering the defence probabilities, this court finds that accused has not brought on record in defence to rebut the charges with sufficient explanation. This court has considered the statement of the accused under section 281 Cr.P.C recorded on 13.7.2012 . The plea put forward is that accused was implicated falsely when some altercation took place between him and SI Ajeet Malik and present false case of unlicenced possession of fire works was foisted upon him, though the material was still being unloaded from tempo at accused's shop. The defence witnesses have not proved any material to show them as owners of their respective fire FIR NO. 534/07 page 11 of 12 pages work shops . The documents Ex. DW1/A to Ex. DW1/C , the alleged invoices are neither executed , nor prepared nor are these signed by DW1 and thus cannot be considered in evidence under Evidence Act. Exactly, similar is the version of DW2 and DW3 who have not proved themselves to be the owners of Harsh Kumar Fire works and Sahni Di Hatti respectively. The plea of accused is not substantiated by any material on record. The plea is that police officials had falsely implicated him . There is no reason why police officials would rope him in falsely in the absence of evidence of any enmity or personal grudges. The defence is highly unbelievable and as such, completely pales into insignificance.
19. The prosecution has proved the charges against the accused beyond cavil. Accused Joginder Nath Sahni is convicted for the offence punishable under section 9-B of the Explosives Act .
20. Let he be heard on the point of sentence on 12.04.2013 at 12.00 pm. (ANNOUNCED IN THE OPEN COURT ON 11.04.2013) (MS. RAVINDER BEDI) CHIEF METROPOLITAN MAGISTRATE NORTH EAST, KKD COURTS,DELHI FIR NO. 534/07 page 12 of 12 pages IN THE COURT OF MS. RAVINDER BEDI, CHIEF METROPOLITAN MAGISTRATE, NORTH EAST, KARKARDOOMA COURTS : DELHI STATE VS. JOGENDER NATH SAHNI FIR NO. 534/2007 U/S: 9B of THE EXPLOSIVES ACT P.S.: SEEMAPURI ORDER ON THE QUANTUM OF SENTENCE:
12.04.2013:
Present: Ld. APP for the State.
Convict on bail with counsel Shri R. K. Kapoor.
I have heard arguments on the quantum of sentence. It is submitted by counsel for the convict that convict is of 32 years of age and is the only earning member of his family. It is submitted that a sympathetical approach may be taken in favour of the convict. It is stated that convict has clean antecedents and belongs to good strata of society and sentencing him would adversely affect his career and future. It is stated that convict is facing trial since October, 2008 and is religiously appearing before the Court.
Per contra, Ld. APP for the State has prayed for strict punishment as per law, keeping in view the nature of offence .
FIR NO. 534/07 page 13 of 12 pages I have heard respective parties at bar, considered the nature of offence, the antecedents of convict and looked into the circumstances of the case. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. Having considered the nature of offence, and over all situation, it would be appropriate to sentence the convict to simple imprisonment for six months alongwith fine of Rs. 3,000/. Convict shall also pay compensation in the sum of Rs. 5,000/ under section 357(1) of Cr.P.C., to be applied in defraying the expenses incurred in prosecution and in default convict shall further undergo imprisonment for three months.
Copy of judgment and order on sentence be given to the convict free of cost.
File be consigned to record room after completion of all other necessary formalities in this regard.
(ANNOUCNED IN THE OPEN COURT ON 12.04.2013) (MS. RAVINDER BEDI) CHIEF METROPOLITAN MAGISTRATE NORTH EAST, KKD COURTS,DELHI FIR NO. 534/07 page 14 of 12 pages