Delhi District Court
State vs Firoz@Parvesh on 6 May, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE: SOUTH EAST DISTRICT : SAKET
COURTS : NEW DELHI
DLSE020258072021
JUDGMENT
STATE VS. FIROZ @ PARVEJ FIR No. : 583/2021 U/s 25/54/59 Arms Act PS : BADAROYR A. CNR NO. : DLSE020258072021 B. CIS No. of the Case : 9382/2021 C. Date of Institution : 13.12.2021 D. Date of Commission of : 26.10.2021 Offence E. Name of the complainant : Ct. Rajender F. Name of the Accused : Firoj @ Parvej S/o Sh. Bashir persons, his Parentage & Khan R/o H.No. C-326, Addresses Nehru Camp, Govindpuri, Kalkaji, New Delhi.
G. Offence complained of : U/s 25/54/59 of Arms Act H. Plea of the Accused : Pleaded not guilty and claimed trial I. Order reserved on : Not reserved J. Final order : Acquittal K. Date of such order : 06.05.2025
Brief Statement of Reasons for Decision of the Case:
1. The present FIR under Section 25/54/59 of Arms Act was registered on complaint of complainant against accused Firoj @ Parvej alleging that on 26.10.2021 at about 2.15 PM at Subji Mandi, Mohan Baba Nagar, Gali No. 6, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, accused was found in possession of a button actuated knife without any permit or Digitally signed by Vivek Vivek State Vs.Firoj @ Parvej beniwal beniwal Date:
2025.05.16 FIR No. 583/2021, PS: Badarpur 13:22:31 +0530 1 of 11 licence. Matter was reported to the police.
2. FIR was registered and matter has been investigated by IO/HC Vijay Singh, who filed charge-sheet against the accused person, upon which cognizance was taken on 17.12.2021.
3. Accused was summoned before the Court. Copy of charge sheet under section 207 Cr.P.C. was supplied to the accused.
4. Charge was framed vide order dated 25.07.2022 for the offence punishable U/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
5. The statement of Accused was recorded on 19.07.2023 under Section 294 Cr.P.C whereby he admitted the genuineness of FIR No. 583/21 P.S. Badarpur Ex.A1, Certificate under Section 65B of Evidence Act Ex.A2, GD No. 44A dated 26.10.2021 Ex.A3, GD no. 112A dated 26.10.2021 Ex.A4 and DAD notification dated 29.10.1980 Ex.A5.
6. The prosecution, in support of its case, has examined four witnesses.
7. PW-1/HC Rajinder Singh deposed that on 26.10.2021, he along-with Ct. Vipin were on beat patrolling duty at beat no. 3A and during patrolling duty, when they reached at Gali No. 6, Sabji Mandi, Mohanbaba Nagar, at about 02:15 pm accused came from the side of Gali No. 6 towards them who after seeing them, started returning rapidly towards the gali. On suspicion, they chased the accused for about 15 to 20 steps, stopped him and on inquiry he could not answered satisfactorily. PW1 made cursory search of accused and found one button operated knife from the State Vs.Firoj @ Parvej Vivek Digitally signed by Vivek beniwal FIR No. 583/2021, PS: Badarpur beniwal Date:
2025.05.16
2 of 11 13:22:53 +0530 right pocket of pant. He informed regarding recovery of buttondar knife and apprehension of accused to duty officer of PS Badarpur whereafter IO/ HC Bheem Singh came to the spot and PW1 handed over the accused as well as recovered buttondar knife to IO/ HC Bheem Singh. IO inquired the accused and accused revealed his name as Firoz R/o Govind Puri. IO prepared sketch of recovered knife Ex. PW1/1. IO/ HC Bheem Singh had mentioned the description of knife in the sketch. IO prepared site plan at the instance of PW1 Ex. PW1/2 and recorded his statement Ex. PW1/3. IO prepared rukka and got the present case registered through PW1. IO prepared arrest memo of the accused vide memo Ex. PW1/4 and also prepared personal search memo of the accused vide memo Ex. PW1/5. IO also recorded the disclosure statement of the accused vide Ex. PW1/6. IO kept recovered knife in transparent plastic box and wrapped the box with a doctor tape and sealed the same with the seal of 'BS'. This witness correctly identified the accused and case property Ex.P1. This witness was cross examined and discharged.
8. PW2/HC Vipin deposed on the lines of PW1. He also proved seizure memo of knife Ex.PW2/A. This witness also identified the accused and the case property Ex.P1 in the Court. This witness was cross examined and discharged.
9. PW-3/HC Bhim Singh deposed that on 26.10.2021, upon receipt of information regarding the recovery of the buttondar knife from one person at Subzi Mandi, Mohan Baba Nagar, Gali No. 6, Badar Pur, Delhi, he reached the spot where Ct. Rajinder and Ct. Vipin handed over him the case property and custody of the person. He inquired the matter from that person and revealed his name as Firoz @ Parvez. Thereafter he prepared the sketch of State Vs.Firoj @ Parvej Digitally signed by FIR No. 583/2021, PS: Badarpur Vivek Vivek beniwal Date: 3 of 11 beniwal 2025.05.16 13:23:01 +0530 the knife Ex. PW1/1 and then prepared the seizure memo of the said knife Ex. PW2/A. He recorded the statement of Ct. Rajinder Ex. PW1/3 and prepared the rukka Ex. PW3/1 and got the present case registered through Ct. Rajinder. Thereafter he prepared the site plan of the place of incident Ex. PW1/2. He prepared the arrest and personal search memo of the accused Ex. PW1/4 and Ex. PW1/5. He recorded the disclosure statement of the accused Ex. PW1/6. After that the accused was taken to the hospital for his medical examination by Ct. Rajender and PW3 along with other police staff came back to the PS where he deposited the case property in the malkhana. This witness correctly identified the accused in the Court. This witness was cross examined and discharged.
10. PW4/ASI Vijay Singh deposed that on 11.11.2021, the investigation of the present case was handed over to him by the PS SHO concerned. The MHC(R) handed over the case file to him and he inspected the same. He got to know that the accused was in judicial custody. On one occasion he had moved an application for extension of the JC of the accused. Thereafter he had prepared the charge sheet of the present matter and submitted the same before the court. This witness correctly identified the accused in the Court.
11. No other witness was examined by the prosecution and hence, PE was closed.
12. The statement of the Accused was recorded under Section 313 Cr.P.C, whereby he was confronted with the incriminating evidence that had come on record against him. The Accused denied the same and asserted that he has been falsely implicated Digitally State Vs.Firoj @ Parvej Vivek signed by Vivek beniwal Date:
FIR No. 583/2021, PS: Badarpur beniwal 2025.05.16 13:23:10 4 of 11 +0530 in his case. The Accused opted not to lead evidence in defence.
13. Final arguments advanced by Ld. APP for State and Ld. counsel for accused heard. Case record perused meticulously.
14. After hearing Ld. APP for the State and Ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegations beyond reasonable doubt.
15. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:- (1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***]
(c) ****
(d) bring into, or takes out of, India, any arms or ammu-
nition of any class or description in contravention of sec- tion 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
16. As per the prosecution case, the sketch memo of the case property vide Ex PW 1/1 and the seizure memo of the case property vide Ex. PW2/A were prepared before the preparation of rukka Ex.PW3/1. However, the said documents contain the Digitally signed by Vivek State Vs.Firoj @ Parvej Vivek beniwal FIR No. 583/2021, PS: Badarpur beniwal Date:
2025.05.16 5 of 11 13:23:18 +0530 number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared.
17. In the rukka as well as in the testimony of all the witnesses, who are police officials it has been stated that public persons were present at the spot where accused was apprehended. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. From the overall testimony of the witnesses, it is clear that the IO has not joined any passersby/public witness at the time of arrest or while completing the formalities despite availability of public persons. In fact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, admittedly public persons were present there. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party including the IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
18. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:- Digitally signed by Vivek Vivek beniwal Date:
beniwal 2025.05.16 13:23:25 +0530 State Vs.Firoj @ Parvej FIR No. 583/2021, PS: Badarpur 6 of 11 "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 FIR No. 940 of 2020 PS Najafgarh inde-
pendent 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 shop-keepers could have been persuaded to join the raiding party to wit- ness 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 es- caped 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".
19. In a case law reported as "Roop Chand Vs. The 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 prosecu- tion 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 inde- pendent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will re- sult into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigat- ing 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 ad- mittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire con- fidence because the police officials who are the only wit- nesses examined in the case have not given the names and addresses of the persons contacted to join it is a very com- mon 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 Digitally State Vs.Firoj @ Parvej Vivek signed by Vivek beniwal Date:
FIR No. 583/2021, PS: Badarpur beniwal 2025.05.16 13:23:32 7 of 11 +0530 the investigation and on refusal by a person from the public the Investigating Officer can take action against such a per-
son under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the In- vestigating Officer must have proceeded against them un- der the relevant provision of law. The failure to do so by the police officer is FIR No. 940 of 2020 PS Najafgarh sugges- tive of the fact that the explanation for non-joining the wit- nesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prose- cution case highly doubtful".
20. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Po- lice officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the inde- pendent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the inde- pendent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
Digitally signed by Vivek Vivek beniwal State Vs.Firoj @ Parvej beniwal Date:
2025.05.16 FIR No. 583/2021, PS: Badarpur 13:23:39 +0530 8 of 11
21. In the present case, the IO has not joined the public persons in the investigation. The time and place from where the accused was apprehended itself suggest that public persons must have been present at the spot as it was a public place. However, despite that, the IO did not even make a sincere effort to join any public person as witness in the investigation. This creates a doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
22. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
23. In the instant case, it is the case of the prosecution that the case property was sealed with the seal of 'BS'. However, no handing over memo was prepared. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property can't be ruled out.
24. The Section 100(4) Cr.P.C provide that "before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any Digitally State Vs.Firoj @ Parvej signed by Vivek Vivek beniwal Date:
FIR No. 583/2021, PS: Badarpur beniwal 2025.05.16 13:23:48 9 of 11 +0530 other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issue an order in writing to them or any of them so to do". This provision of law has not been complied with by the IO.
25. None of the police officials offered their search before taking search of the accused. It has not been proved that the seal was handed over to any other independent witness / public person and therefore, the possibility of case property being tempered with or the planting of the knife upon the accused cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
26. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
27. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Firoj @ Parvej S/o Digitally State Vs.Firoj @ Parvej Vivek signed by Vivek beniwal FIR No. 583/2021, PS: Badarpur Date:
beniwal 2025.05.16 10 of 11
13:23:56
+0530
Sh. Bashir Khan is hereby acquitted of the offence punishable under Section 25 of Arms Act.
28. Accused be set at liberty.
Dictated and announced Digitally in the open Court on 06.05.2025 signed by Vivek Vivek beniwal beniwal Date:
2025.05.16 13:24:00 +0530 (VIVEK BENIWAL) ACJM (SOUTH EAST):
SAKET COURTS:NEW DELHI State Vs.Firoj @ Parvej FIR No. 583/2021, PS: Badarpur 11 of 11