Delhi District Court
State vs Rakesh Kumar on 11 February, 2025
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Rakesh Kumar
FIR No : 205/2022
U/s : 188/286 IPC and Section 9B of Explosive Act
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020599082023
2. Date of commission of offence : 17.10.2022
3. Date of institution of the case : 22.11.2023
4. Name of the complainant : Rajbir Singh
5. Name of accused, parentage & : Rakesh Kumar
address S/o Hari Ram
R/o H. no.110, Dabar
Enclave, Rawta Mor,
J. P. Kalan, Delhi
6. Offence complained of : 188/286 IPC and
Section 9B of
Explosive Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 11.02.2025
Argued by:- Mr. Amit Sehrawat, Ld. APP for the State.
Mr. Vipin Sehrawat, Ld. Counsel for accused.
Digitally signed
by ABHINAV
FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 1 of 20 ABHINAV AHLAWAT
Date:
AHLAWAT 2025.02.11
15:52:24
+0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 17.10.2022 at about 09:20 PM at Baba Hari Das Book Depot, Dabar Enclave, Rawta Mor, J. P. Kalan, New Delhi, accused was found in possession of explosives (total weighing 3.5 kg) for the purpose of selling without licence in contravention of rules made u/S 5 of The Explosives Act, 1884 and Rule 113 of The Explosives Rules, 1983 and thus he committed an offence punishable U/s 9B of The Explosives Act, 1884. Further, he kept the above said explosive substance as mentioned in seizure memo without taking due caution so rashly or negligently as to endanger human life or likely to hurt or injury to public at large, which were prohibited for sale and use as per order issued by DCP, Dwarka District dated 30.09.2022 and thereby committed the offences punishable under Sections 188/286 of IPC for which FIR no.205/2022 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The court took the cognizance against the accused and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice under Sections 188/286 of IPC and Section 9B of Explosive Act was Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 2 of 20 Date:
AHLAWAT 2025.02.11 15:52:31 +0530 served upon the accused on 26.03.2024. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 ASI Rajbir PW-2 HC Manoj Kumar PW-3 ASI Shivanand DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant Ex.PW1/B Site plan Ex.PW1/C Seizure memo qua case property Ex.PW1/D Disclosure statement of accused Ex.P1 Photographs of the case property Ex.PW2/1 Tehrir Ex.PW2/2 Notice u/S 41A Cr. P. C. Ex.PW2/3 Seal handing over memo ADMITTED DOCUMENTS Ex.A1 FIR no.205/2022 alongwith certificate u/S (colly) 65B of Indian Evidence Act Ex.A2 DD no.108A dated 17.10.2022 Ex.A3 Order no.24800900/HAX Branch Dwarka dated 30.09.2022 Ex.A4 Destruction order of case property dated 15.11.2022 Ex.A5 RC no.169/21/22 dated 14.12.2022 Ex.A6 Entry in register no.19 and 21
4. To prove its case, prosecution examined the following witnesses, the same are as follows.
Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 3 of 20 AHLAWAT Date:
2025.02.11 15:52:36 +0530 PW1 ASI Rajbir deposed that on 17.10.2022, he was on patrolling duty at beat no.4 alongwith HC Gajender. During patrolling, they reached at Baba Hari Dass Book Depot Dabar Enclave, Rawta Mor, Delhi at about 09:20 pm. He stated that after reaching there, they saw one person was selling cracker in front of Baba Hari Dass Book Depot and he was carrying one gathri and when he checked the said gathri, he found crackers of different variety. He stated that he shared the said information with DO telephonically and HC Manoj reached at the spot and he handed over the custody of accused and case property to HC Manoj. He stated that IO checked the said gathri and found crackers and IO took out 500 grams crackers as sample and remaining 3kg crackers were put in the same gathri and sealed the same and the remaining case property with the seal of SN and after use, the seal was handed over to HC Gajender. He stated that IO asked accused to show the valid licence regarding selling of crackers but he failed to produce the same. He stated that IO recorded his statement at the spot Ex.PW1/A, on the basis of which he prepared tehrir and got the FIR registered through him. He stated that IO prepared the site plan at his instance Ex.PW1/B and IO seized the case property in his presence vide seizure memo Ex.PW1/C. He stated that IO served notice u/S 41A Cr. P. C. upon the accused and recorded disclosure statement of accused in his presence Ex.PW1/D and thereafter, they left the spot and reached at PS. He stated that after reaching at PS, IO deposited the case property in malkhana and IO also recorded his statement u/S 161 Cr. P. C. The witness correctly identified the accused present in the court and photographs of the case property as Ex.P1 (colly). In the cross-examination, he stated that when they reached at the spot, some public persons were passing-by Digitally signed by ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 4 of 20 ABHINAV AHLAWAT Date:
2025.02.11 15:52:40 +0530 but IO did not serve any notice to the public person at the time of recovery of case property. He stated that one CCTV camera was installed at a general store 200 meters away from the spot and he was having a smart phone on the day of incident but he did not click any photograph or video of the spot and case property. He further stated that IO had taken the photographs of the spot at the time of recovery, however, he could not tell how many photographs were clicked and no photographs were placed on the file. He stated that he could not tell if accused could be depicted in any of such photograph which were clicked by IO and he did not hand over any DD / document to the IO to show that he was on patrolling duty on that day. He stated that the spot was a market place and there were shops on both sides of book depot and no shop was opened as it was late night. He stated that IO did not obtain his signatures on the site plan which was prepared in his presence and nobody from the Finger Print Department was called by the IO to recover the chance print from the case property. He stated that no person with the name of SN was present when the seal of SN was used and he had not seen any authority for handing over seal of SN to HC Manoj Kumar. He stated that they were patrolling on foot and the distance between the spot and PS was 300-350 meters. He stated that they did not verify as to who was the owner of shop in question and they finally left the spot at about 01:20 am. He stated that the IO was having a machine of measuring the weight in the kit and there was no buyer at the spot when they reached there.
5. PW2 Manoj deposed that on 17.10.2022, he received DD no.0108A Ex.A2 and thereafter, he went to the spot and after reaching the spot, he met with ASI Rajbir and HC Gajender. He Digitally signed by ABHINAV AHLAWAT ABHINAV FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 5 of 20 AHLAWAT Date:
2025.02.11 15:52:45 +0530 stated that ASI Rajbir handed over the custody of accused and case property to him and during interrogation, accused disclosed his name as Rakesh. He stated that he checked the said gathri and found crackers and he took out 500 grams crackers as sample and remaining 3kg crackers were put in the same gathri and sealed the same and the remaining case property with the seal of SN. He stated that after use, the seal was handed over to HC Gajender and he asked him to show the valid licence regarding selling of crackers but accused failed to produce the same. He stated that he recorded statement of ASI Rajbir at the spot and on the basis of which he prepared tehrir Ex.PW2/1 and got the FIR registered through ASI Rajbir. He stated that he prepared the site plan and seized the case property and served notice u/S 41A Cr. P. C. upon the accused Ex.PW2/2. He stated that he recorded disclosure statement of accused and he also prepared seal handing over memo Ex.PW2/3 and thereafter, they left the spot and reached at PS. He stated that after reaching at PS, he deposited the case property in malkhana and he also recorded statements of witnesses u/S 161 Cr. P. C. Thereafter, he was transferred from PS and he deposited the case file with MHC (R). The witness correctly identified the accused present in the court and photographs of the case property as Ex.P1 (colly). In the cross-examination, he stated that he was not the eye-witness of recovery of case property from accused and he did not serve any notice to the public person at the time of recovery of case property. He stated that one CCTV camera was installed at a general store 200 meters away from the spot and he was having a smart phone on the day of incident but he did not click any photograph or video of the spot and case property. He stated that he did not obtain any document from PS which shows that ASI Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 6 of 20 Date:
AHLAWAT 2025.02.11 15:52:49 +0530 Rajbir was on patrolling duty on that day. He stated that the spot was a market place and there were shops on both sides of book depot and no shop was opened as it was late night. He stated that nobody from the Finger Print Department was called by him to recover the chance print from the case property and no person with the name of SN was present when the seal of SN was used. He stated that they finally left the spot at about 01:30 am and he was having a machine of measuring the weight in the kit and there was no buyer at the spot when they reached there.
6. PW3 ASI Shivanand deposed regarding preparation of charge-
sheet and its submission before the court.
7. On account of admission of accused u/s 294 Cr.P.C, remaining witnesses in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined, hence, PE was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
8. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded on 27.09.2024 without oath under section 281 r/w 313 CrPC, wherein he had stated that he was innocent and had falsely been implicated in the present case. He further stated that the said material was stored in his house which was purchased by him before Corona related lock down and all those material had already expired and he had no intention to sell Digitally signed by ABHINAV ABHINAV AHLAWAT Date: FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 7 of 20 AHLAWAT 2025.02.11 15:52:53 +0530 them. Accused further stated that he did not want to lead defence evidence.
FINAL ARGUMENTS
9. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offence.
11. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it . As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
12. The provisions of section 188 IPC, 286 IPC and Section 9B of Explosive Act are as follows:
Section 188 IPC- Disobedience to order duly promulgated by public servant Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 8 of 20 AHLAWAT Date:
2025.02.11 15:52:58 +0530 Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Section 286 IPC- Negligent conduct with respect to explosive substance - Whoever does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 9B - Punishment for certain offences - (1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules-
(a) manufactures, imports or exports any explosive shall he punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) in any other case, with fine which may extend to one thousand rupees.
(2) Whoever in contravention of a notification issued under section 6 manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in the ease of importation by air, the owner, and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.Digitally signed by ABHINAV
ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 9 of 20 AHLAWAT Date:
2025.02.11 15:53:04 +0530 (3) Whoever,- (a) manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of section 6A;
or
(b) sells, delivers or despatches any explosive in contravention of the provisions of clause (b) of that section, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; or
(c) in contravention of the provisions of section 8 fails to give notice of any accident shall be punishable,--
(i) with fine which may extend to five hundred rupees, or
(ii) if the accident is attended by loss of human life, withimprisonment for a term which may extend to three months or with fine or with both.
APPRECIATION OF EVIDENCE
13. The allegations levelled against the accused person are segregated into two parts:
Firstly, that on 17.10.2022 at about 09:20 PM at Baba Hari Das Book Depot, Dabar Enclave, Rawta Mor, J. P. Kalan, New Delhi, accused was found in possession of explosives (total weighing 3.5 kg) for the purpose of selling without licence in contravention of rules made u/S 5 of The Explosives Act, 1884 and Rule 113 of The Explosives Rules, 1983 and thus he committed offence punishable U/s 9B of The Explosives Act, 1884.
Secondly, accused was found in possession of abovementioned fire crackers and kept the same without taking due caution so rashly or negligently as to endanger human life or likely to hurt or injury to public at large which were prohibited for sale and use as per order issued by DCP, Dwarka District dated 30.09.2022 and thereby committed offence punishable under Sections 188/ 286 IPC.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 10 of 20 Date:
AHLAWAT 2025.02.11 15:53:10 +0530
14. Let us deal with the first set of allegation against the accused regarding offence punishable under Section U/s 9B of The Explosives Act, 1884. The accused has been charged for the offence of possessing explosive in the present case. The prosecution has also required to prove that the accused was possessing the explosive without having any licence/ permit in that regard and kept the above said explosive substance without taking due caution so rashly or negligently as to endanger human life or likely to hurt or injury to public at large.
APPRECIATION OF EVIDENCE
15. 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 is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. 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.
The non-joining of any independent / public witness
16. It is evident from the testimony of the prosecution witnesses that no public witness to the recovery of the explosive has been either cited in the list of prosecution witnesses or has been examined by the prosecution. PW1 stated in his cross-examination that when Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 11 of 20 AHLAWAT Date:
2025.02.11 15:53:15 +0530 they reached at the spot at that time some public persons were passing-by but IO did not serve any notice to the public person at the time of recovery of case property. PW2 IO also stated that he did not serve any notice upon the public persons at the time of recovery of case property. Thus, it is not the case of prosecution that public witnesses were not available at the spot. As evident from the site plan Ex.PW1/B the spot of alleged recovery is near the road leading to Daurala Border which is frequented by public at all times of the day. As admitted by IO PW2 that the spot of apprehension of accused is a market place having shops on both sides and certain shops were opened during late night as well. 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 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."
17. 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:
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 12 of 20 Date:
AHLAWAT 2025.02.11 15:53:20 +0530 "........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.
18. 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 no serious efforts were undertaken by the investigating agency to join them. 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 afterthought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
19. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 13 of 20 AHLAWAT Date:
2025.02.11 15:53:25 +0530 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.
20. 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.
21. 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.
Possibility of misuse of seal of the investigating officer
22. As per the version of PW1, after sealing the case property and with the seal of "SN", the seal was handed over to HC Gajender. However, HC Gajender was a part of the investigation in the present case. PW2 stated in his cross-examination that no person with the name of SN was present when the seal was used. Hence, Digitally signed by ABHINAV AHLAWAT ABHINAV FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 14 of 20 AHLAWAT Date:
2025.02.11 15:53:30 +0530 it is not clear from whom the seal of SN belongs to. There is no document to show that the seal was deposited in malkhana. Therefore, the circumstances under which the seal was obtained and used is under a shadow of doubt. As such, the seal was never handed over to any independent witness. Moreover, the seal handing over memo has not been prepared. This assumes great significance owing to the fact that the sample was sent to Excise Lab only on 14.12.2022, i.e. after a period of about two months from the date of alleged seizure i.e. 17.10.2022. There is no seal handing over memo on the judicial file. Hence, it can be presumed that no handing over memo of seal was prepared by the IO in this regard. In addition to this, there is no taking over or handing over memo on record to show as to when the seal was taken back from HC Gajender or if it remained with him forever. 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.
23. 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 Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 15 of 20 Date:
AHLAWAT 2025.02.11 15:53:35 +0530 tampering with seals as well as seized contraband and samples cannot be ruled out."
24. 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 sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not 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...."
25. Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
26. Furthermore, doubts are raised with respect to false implication of accused person from the fact that although all the prosecution witnesses remained at the spot for considerable period of time but no photographs of the case property or the spot were taken. No efforts were taken to lift chance prints of the accused person from the gathri in which explosive was kept which could have lend credence to the prosecution version. Also, despite the spot being surrounded by shops no efforts or reasons are forthcoming regarding presence of any CCTV cameras.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 16 of 20 AHLAWAT Date:
2025.02.11 15:53:40 +0530
27. Further, fact of the accused being present at the spot is also shrouded with clouds of ambiguity and cast doubt over the actual presence of the accused at the spot as no credible piece of evidence has been brought by the prosecution, rendering the version of the prosecution unworthy of credit and giving rise to the suspicion that the accused person has been falsely implicated in the present case.
28. Now in the present case, as the presence of accused at the spot is under a shadow of cloud and nothing has been brought on record to show that accused was having explosive, therefore, without any direct evidence, nothing has been brought by the prosecution to show that accused kept the explosive substance without taking due caution so rashly and negligently. Although the accused had not led any defence evidence. However, primary duty is of the prosecution to establish the case against the accused beyond reasonable doubt. Based upon the above, the prosecution failed to prove that the subject property i.e. explosive were found from the possession of accused. Accordingly, offence u/S 9B of Explosive Act is not made out.
29. The second set of allegations against the accused revolves around offence punishable under Section 188 and 286 IPC that accused kept the above said explosive substance which were prohibited for sale and use as per order issued by DCP, Dwarka District dated 30.09.2022 and that accused was rash and negligent in keeping the said explosive substance.
30. Qua the charge u/s 188 IPC, the prosecution has alleged violation on the part of accused person of order u/s 144 Cr. P. C. of DCP concerned vide office letter no.24800-900/HAX Branch/Dwarka Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 17 of 20 AHLAWAT Date:
2025.02.11 15:53:45 +0530 District dated 03.09.2022. So far as the power of the DCP, Dwarka District to pass the aforesaid order is concerned, the same is not in issue. The only contention of the counsel for accused person is that accused person was not present at the spot and he had been falsely implicated in the present case and thereby the present charges are not made against them.
31. Upon perusal of the Order of DCP, Dwarka District, which was admitted by the accused Ex.A3, it clearly mentions that "prohibit the sale and use of all type of firecrackers before, during and after Dusshera, Deewali and other forthcoming festivals". Any person contravening this order was made punishable under Section 188 IPC.
32. Ld. Counsel for accused stated that prosecution has not been able to prove the primary offence of Section 9B of the Explosive Act and accused be accordingly be granted benefit of doubt.
33. Accused stated in his statement under Section 313 Cr. P. C. that the said material was stored in his house which was purchased by him before Corona related lock down and all those material had already expired and he had no intention to sell them. Although the statement of the accused person under section 313 Cr.P.C. is not evidence and as such no evidence was led by the accused person in his defence, but prosecution was under the obligation to prove its case by establishing that accused person was found in possession of explosive for the purpose of selling. As already stated above, possession of explosive substance from the accused is not established by the prosecution and neither the presence of the acused at the spot is established nor the fact that acucsed person was selling the crackers as mandated by the order of the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 18 of 20 Date:
AHLAWAT 2025.02.11 15:53:51 +0530 DCP Dwarka District dated 30.09.2022. No material has been produced by the prosecution to sustain the charge framed under Section 188 IPC. As the possession of the material from accused person has not been established by the prosecution beyond reasonable doubt benefit of which would accrue to the accused person.
CONCLUSION
34. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused person is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused person to acquittal.
35. 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 the guilt of the accused person 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 person for offences under Sections 188/286 of IPC and Section 9B of Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 19 of 20 AHLAWAT Date:
2025.02.11 15:53:56 +0530 Explosive Act beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
36. Accordingly, this court hereby accords the benefit of doubt to the accused for the offences under Section 188/286 IPC and Section 9B of The Explosives Act, 1884 and holds the accused not guilty of commission of the said offence. Accused Rakesh Kumar is thus, acquitted of the offences under Sections 188/286 IPC and Section 9B of The Explosives Act, 1884.
Announced in the open court ABHINAV AHLAWAT Digitally signed by ABHINAV on 11.02.2025 in the presence AHLAWAT Date:
2025.02.11 of the accused.
15:54:05 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/11.02.2025 Note:- This judgment contains 20 pages and each page has been signed by me. Digitally signed by ABHINAV AHLAWAT ABHINAV Date:
AHLAWAT 2025.02.11
15:54:12
+0530
(Abhinav Ahlawat)
Judicial Magistrate First Class-09,
Dwarka, Delhi/11.02.2025
FIR No.120/2012, PS Jafarpur Kalan State vs. Rakesh Kumar Page 20 of 20