Delhi District Court
Judgments. In Case Law Reported As ... vs . State" 1992(2) on 6 October, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Dinesh Chand Khandelwal
FIR No.307/2009
P.S Ambedkar Nagar
JUDGMENT
1. Sr. No. of case 2034920/2016 2. Date of institution 13.01.2011 3. Name of the complainant SI Shiv Raj Singh Bisht
4. Date of commission of offence 08.10.2009 at about 04:35 PM.
5. Name of accused Accused Dinesh Chand
Khandelwal
S/o Sh. Birdhi Chand
R/o House No.B-23, Central
Market, Madangir, New Delhi-
110062.
6. Offence complained of U/sec 286 IPC & 9 B Explosive
Act
7. Plea of accused Accused pleaded not guilty
8. Date of reserving the judgment 03.10.2018
9. Final order Acquitted
FIR No.307/2009 PS Ambedkar Nagar Page-1 of 14
10 Date of such judgment 06.10.2018
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. Brief background of the case is that on 08.10.2009 an information was received by SI Shiv Raj that huge quantity of crackers were kept at first floor, Central Market Madangir. Upon instructions a raiding party was constituted and the team reached Khandelwal Store at 04:35 P.M where Dinesh Kumar Khandelwal was found selling crackers. Upon inquiry he revealed that he has a valid licence. Accused took the team to the godown where crackers were stored. 115 cartons were recovered and some crackers were scattered here and there. The crackers which were scattered were kept in 15 gunny bags. The accused was authorized to keep 2000 kg crackers only. The crackers in the godown exceeded the said quantity. The weight of the crackers were found to be 2400 kg approximately. FIR was registered. Charge sheet was filed upon completion of investigation.
2. Provisions of Section 207 Cr.P.C. were complied with. On appearance of accused before Court and prima facie case having been made out, notice for the offence of under section 9B (I) of Explosive Act, 1884 was framed against the accused on 26.10.2013. FIR No.307/2009 PS Ambedkar Nagar Page-2 of 14
3. In order to prove its case, prosecution examined 09 witnesses in all.
3.1 SI Ganga Sharan was examined as PW1. He deposed that on 08.10.2009, he was posted at PS Ambedkar Nagar, South as duty officer. That day at about 08:30 P.M., Ct. Arun Kumar handed over a rukka to him for registration of the case. On the basis of it, he registered the present case. He exhibited copy of FIR vide Ex.PW1/A and he also made endorsement on the rukka vide Ex.PW1/B. 3.2 Sh. Mahavir Prasad was examined as PW2. He deposed that in the year 2009-2010, he had given premises No.E-I/162, Madangir on rent to one Dinesh Kumar and one Manoj Kumar for residential purposes as he was the landlord of the aforesaid premises. It is stated that accused is not said Dinesh Kumar to whom the premises were let out.
3.3 ASI Surender Kumar was examined as PW3. He deposed that on 08.10.2009, he was posted as HC in Special Staff, South East. That day SI Shiv Raj received information from Ct. Sunil that huge quantity of crackers were kept at E-I/162, First Floor, Central Market, Madangir, New Delhi. A raiding party was formed comprising of himself, Ct. Sunil, Ct. Sanjeev, Ct. Arun, Ct. Prakash, Ct. Surender and SI Shiv Raj. SI Shiv Raj made DD No.9 regarding dispute. They reached at about 04:15 P.M. at Central Market, Madangir, New Delhi FIR No.307/2009 PS Ambedkar Nagar Page-3 of 14 where IO requested 4-5 public persons to join the raiding party but in vain. They reached at Khandelwal Store at about 04:35 P.M. where they found accused conducting business in the shop. He was selling crackers and upon enquiry revealed that he had a valid licence. SI Shiv Raj asked him if he was stocking crackers at E-16. They took accused to the godown where crackers were stored. They unlocked the godown and they found petties/box made of cardboard containing crackers. They counted the same which were found to be 115 in number. Some crackers were scattered here and there without petty. IO sent Ct. Sunil for getting investigation kit. It was found that 2000 kg of crackers were kept in the shop namely Khandelwal store only and the crackers in godown were in excess of that quantity. Thereafter, crackers were weighed and it was found that it was total 2400 kg approximately. FSL Form was filled. Seizure memo was prepared regarding the seized case property. IO prepared rukka and handed over to Ct. Sunil. SI Ram Manohar came at the spot alongwith Ct. Arun with the FIR. Accused was arrested and personal search was conducted. Case property was deposited in the Malkhana. Seizure memo of petties and gunny bags containing sample and FSL form Ex.PW3/A. Seizure memo of documents Ex.PW3/B, arrest memo and personal search memo vide Ex.PW3/C and Ex.PW3/D. 3.4 Inspector Shivraj Singh Bisht was examined as PW4. He deposed that on 08.10.2009, he was posted at Special Staff (Operation FIR No.307/2009 PS Ambedkar Nagar Page-4 of 14 Cell), South East as SI. That day, he was informed by Ct. Sunil that accused was having some explosives substance in his possession. He informed about the same to then Inspector Special Staff. Information was also entered in DD register vide DD No.9 of Special Staff, South East District. He alongwith Ct. Sunil, HC Surinder, Ct. Sanjeev, Ct. Arun, Ct. Prakash and Ct. Surender went to his shop at Madangir, Central Market, Ambedkar Nagar where they had asked 4-5 public persons/shopkeepers to join the proceedings but in vain. They met with accused at the shop and they informed him about the information. Thereafter, accused gave them licence/documents and told that he was having licence to sell explosives. Accused revealed that he was having a rented premises at E-162. He took them to that premises and opened the door. On search, some patties were found inside the room. They opened those patties and found crackers of several brands where some of crackers were scattered in the room. He sent Ct. Sunil to bring IO kit/investigation articles. They counted the patties and found 115 patties. Thereafter, crackers were weighed and it was found that it was total 2465 kgs approximately. He prepared tehrir. SI Ram Manohar prepared site plan vide Ex.PW4/A. Crackers were measured vide Ex.PW4/B. 3.5 Sh. Dinesh Chander Pandey, Controller of Explosive Dehradun, Uttarakhand was examined as PW5. He deposed that on 12.02.2010, he was posted as Deputy Controller of Explosive, North Circle FIR No.307/2009 PS Ambedkar Nagar Page-5 of 14 Faridabad. That day he had sent a letter to Assistant Commissioner of Police, OPS South East District for verification of licence number E/NC/DL/24/114 (E48980) and E/NC/DL/24/113 (E48981). It was also intimated vide that letter Ex.PW5/A, premises E-162, First Floor, Madangir, Central Market, Ambedkar Nagar was not having licence under Explosive Rules, 2008 for possession of fire works. On 17.02.2010, again he sent a letter to Assistant Commissioner of Police, OPS South East for safe custody of seized fire crackers away from Malkhana of PS vide letter Ex.PW5/B. The seized fire crackers were declared explosive after examination by one of his senior colleague namely Dr. Rakesh Bajaj (since expired) vide letter Ex.PW5/C. Witness produced photocopy of death certificate of Dr. Rakesh Bajaj vide Mark A. 3.6 Inspector Ashish Singh, PS Kapashera, Delhi was examined as PW6. He deposed that on 30.01.2010, he was posted as SI at Special Staff, South East District. That day, the present file was marked to him for further investigation. Thereafter, he wrote a letter to Director, Petroleum and Explosives Safety Organization, Faridabad to verify the licences. The letter is Ex.PW6/A. He wrote a letter to Director, Petroleum and Explosives Safety Organization, Faridabad for the safe storage of fire crackers/explosives that was seized in the present case. The letter is Ex.PW6/B. Thereafter, he got deposited the recovered case property at Magzine Dabodha through road certificate vide road FIR No.307/2009 PS Ambedkar Nagar Page-6 of 14 certificate Ex.PW6/D. He also wrote a letter to Director, Petroleum and Explosives Safety Organization, Faridabad regarding expert opinion to verify whether the recovered fire crackers in the present FIR come under the explosives act. The letter is Ex.PW6/C. Thereafter, on 09.09.2010, he received the report alongwith covering letter from Controller of Explosives with regard to the letter Ex.PW6/C. As per the report, it was opined that the recovered items came under Explosive Act. During the course of investigation, he also recorded the statements of the witnesses and filed the chargesheet. 3.7 Inspector Ram Manohar was examined as PW7. He deposed that on 08.10.2009 he was posted in the special staff at Madangir. That day at about 8.30 pm, the duty officer from PS Ambedkar Nagar informed that the investigation of the present case was assigned to him by the order of senior officials. Thereafter he went to the spot where SI Shivraj Singh Bist along with other police officials met him. They told him about the recovery and seizure of illicit explosives. Accused was also present there and witness was informed by SI Surender Singh that the explosives were recovered from the possession of accused. There was a total 2464.950 Kgs of explosives recovered which was kept in 115 boxes, in 15 loose kattas. Two kattas were also there which was kept as sample by SI Surender Singh. He prepared the site plan vide Ex. PW-7/A. In the meantime Ct. Arun also came there along with original tehrir and copy of FIR. Thereafter he FIR No.307/2009 PS Ambedkar Nagar Page-7 of 14 mentioned the FIR number on the site plan and the other documents which were already prepared. He arrested accused vide Ex.PW-7/B and conducted personal search Ex.PW-7/C. He got the case property deposited with MHC(M). He recorded statement of the witnesses. Case property i.e. Ex.P-1 was released on superdari to accused. The copy of register no. 19 vide Ex. PW-7/D. Witness correctly identified accused before the court.
3.8 PW-8 HC Sanjeev was examined as PW8. He deposed that on 08.10.2009, he was posted at special staff South East. That day while he was present in his office, Ct. Sunil came there and told SI Shivraj Singh Bist that the illicit crackers were kept at Central Market, Madangir. Thereafter, SI Shivraj Singh Bist shared this information with senior officials and he was asked to conduct a raid by the senior officials. SI Shivraj Singh constituted a raiding party comprising of himself, HC Surender, Ct. Surender, Ct. Sunil, Ct. Arun Ct. Prakash and SI Shivraj Singh himself. At around 4.15 pm they all reached at the Central Market. SI Shivraj Bist asked some public persons to join the investigation but none agreed. Thereafter they reached B-65 where accused met them there. SI Shivraj Bist asked about the crackers from accused after which he shown one licence. SI Shivraj prepared the tehrir and handed over the same to Ct. Arun for registration of FIR. Ct. Arun went to the PS and got the FIR registered and came back with original tehrir and copy of FIR. IO also seized some documents. FIR No.307/2009 PS Ambedkar Nagar Page-8 of 14 Thereafter the investigation was marked to SI Ram Manohar. Accused was arrested and personally searched. Witness correctly identified accused before the court.
3.9 HC Subhash was examined as PW9. He deposed that on 09.02.2010, he was posted as Constable at Special Staff, South East District. That day a letter was given to Director, Petroleum Explosive Safety Organization, North Circle, Hall No.502 & 507, Level 5, Block-II, Old CGO Complex, Faridabad, Haryana in their office. The letter vide ExPW9/A. IO had recorded his statement in this regard.
4. The entire incriminating evidence brought on record against the accused was put to him and his statement under section 313 Cr. PC was recorded. It is stated by accused that he is innocent and has been falsely implicated by the police officials without any reason and he is having a valid licence to keep the same in his shop i.e. B-65, Madangir, Central Market.
5. I have heard arguments advanced by Ld. APP for State and counsel for accused.
6. Accused has been charged for offence u/sec 9 B (I) of Explosive Act, 1884 for being in possession of explosives weighing 2467 kgs kept at E-162, 1st Floor, Madangir, Central Market, New Delhi without any licence.
FIR No.307/2009 PS Ambedkar Nagar Page-9 of 14
7. Prosecution in order to bring home the charge against the accused is required to prove firstly that the accused was in possession of explosives without licence and secondly premises no.E-162, Madangir was in occupation of the accused from where the alleged recovery of explosive was made.
8. PW2 Mahavir Prasad was the owner of premises No.E-162, Madangir. This witness deposed that he had let out his property to one Dinesh Kumar and Manoj Kumar for residential purposes. This witness failed to identify accused Dinesh Kumar as the person to whom he had let out the property.
9. PW3 ASI Surender Kumar, PW4 Inspector Shivraj Singh Bisht, PW7 Inspector Ram Manohar and PW8 HC Sanjeev were the members of the raiding party. All these witnesses corroborated the testimony of each other on the point that the raiding party reached Khandelwal Store where accused was found. Upon inquiry he revealed that he had stored/stocked crackers at E-162, Madangir.
10. All these witnesses have admitted that the accused had valid licence for Khandelwal Store but did not have a licence for E-162, Madangir. As per all these witnesses approximately 2400 kgs crackers were found at E-162, Madangir.
11. Admittedly no public person was joined at the time of raid in compliance of section 100 (4) Cr. P.C. It is claimed by all the witnesses that the crackers which were recovered from E-162 weighed FIR No.307/2009 PS Ambedkar Nagar Page-10 of 14 about 2400 kg approximately whereas upon release of crackers on superdari the weight of the crackers was 1850 kgs as mentioned in document Ex.PW6/DB. There is no explanation how the weight of the allegedly recovered crackers were found less in weight than the one which were recovered.
12. It is a mandatory requirement of law that at the time of conducting the raid compliance of section 100 (4) Cr. P.C is required to be done. Under these circumstances, there is absolute non compliance of Section 100 Cr.P.C. Sub Sec (4) which specifically provides that whenever any search or seizure is effected by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected. The word used in sub Sec (4) of Sec 100 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere effort was made to join respectable witnesses from the same locality.
13. In this regard reliance is being placed on the following judgments. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
FIR No.307/2009 PS Ambedkar Nagar Page-11 of 14 "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 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 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".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. 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 form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is FIR No.307/2009 PS Ambedkar Nagar Page-12 of 14 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 19.01.2013 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 Investigating Officer must have proceeded against them under the relevant provisions 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 FIR No.307/2009 PS Ambedkar Nagar Page-13 of 14 after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
14. The prosecution was also required to prove that the premises E-162 was in occupation of accused form which the alleged recovery was effected. PW2 Mahavir Prasad who is the owner of the said property has not supported the case of the prosecution hence, it stands unproved that premises No.E-162, Madangir was in possession of the accused and that the recovery was effected from the said premises.
15. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving guilt of the accused lies on the prosecution and the prosecution is required to stand on its own legs to establish the culpability of the accused. The benefit of which accrues in his favour. Hence, accused is acquitted for the offence under section 9B (I) of Explosive Act, 1884.
Announced in the open
Court on 06.10.2018 (Pooja Talwar)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 14 pages and each page is signed by me.
Digitally signed(Pooja Talwar) POOJA by POOJA TALWAR CMM (South), Saket Courts, TALWAR 2018.10.06 Date: New Delhi 18:16:56 +0530 FIR No.307/2009 PS Ambedkar Nagar Page-14 of 14