Delhi District Court
State vs . Seema on 23 February, 2023
IN THE COURT OF MS. SHIKHA CHAHAL, MM-11, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
State Vs. Seema
FIR No. : 585/2020
PS : Jaitpur
U/s : 286 IPC & 9 B Explosive Act
JUDGMENT
A Case Identification Number & DLSE020062822021 Cr Case No. & 1979-2021 B Name of the Complainant Constable Satveer, No. 2223/SE, PS Jaitpur ,New Delhi.
C Name of the accused & his Seema, W/o Sh. Kailash Chand, parentage and address R/o H.no. 22, B-Block, gali no. 9, Gagan Vihar, New Delhi.
D Offence complained of Sec.286 IPC & 9 B Explosives Act E Date of commission of offence 13.11.2020 F Date of Institution 08.03.2021 G Offence Charged Sec 286 IPC & 9 B Explosives Act H Plea of accused Pleaded not guilty I Order Reserved on 21.02.2023 J Date of Pronouncement 23.02.2023 K Final Order Acquitted
BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE.
1. Briefly stated, the allegations of the prosecution are that on 13.11.2020 at about 09:00 PM, at H.No. B-22, Gali No. 9, Gagan State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.1 of 11 Vihar, Meethapur Extension, Jaitpur accused Seema was found in possession of crackers, ie, charkhi, phuljhadi, sutli bomb and other explosive substances which could endanger human life at her grocery store without any license for selling of crackers. Upon the complaint of complainant Ct. Satveer, FIR was registered against the accused u/s 286 IPC & 9 (B) Explosives Act.
2. After completion of the investigation, chargesheet was filed before the court. After taking cognizance of the offence and compliance of Section 207 Cr. PC, charge was framed against the accused u/s 286 IPC & 9 B Explosives Act to which she pleaded not guilty and claimed trial.
3. In order to prove its case beyond reasonable doubts, prosecution has examined two witnesses namely; ASI Dharamvir Singh as PW-1 and HC Satyavir as PW-2.
4. PW-1 ASI Dharamvir deposed that on 13.11.2020, after receiving DD No. 77 A regarding recovery of explosive substance, he along with W/Ct went at H.No. B-22, gali no. 9, Gagan Vihar, Jaitpur, New Delhi where they met Ct. Satvir who had already apprehended one lady who was selling explosive substances in her general store shop. After that he interrogated the accused and accused failed to produce license/permit for sale of the explosive substances. IO measured the said explosive substances and it weighed around 8 kg 100 grams. IO had put the explosive substance in a katta and seized and sealed with the seal of BVS. After that he recorded the statement/complaint of Ct. Satvir Ex PW1/A, rukka Ex PW1/B, seizure memo Ex PW1/C, site plan Ex PW1/D, arrested the accused vide arrest memo Ex PW1/E. After completion of the investigation, he prepared the State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.2 of 11 charge sheet and filed before the Hon'ble Court.
5. PW-2 HC Satyavir deposed that on 13.11.2020, at about 9 pm, when he reached at the spot, one lady was selling explosive substance, ie, crackers, patake and fooljhuri and after seeing him she closed the Yellow color plastic katta. He informed at the PS and after some time, ASI Dharamvir reached at the spot along with one lady police official. Thereafter, IO ASI Dharamvir measured the katta containing explosive substance as well as seized and sealed the plastic katta with the seal of "DRS". IO prepared seizure memo Ex PW1/C, recorded his statement Ex PW1/A and prepared rukka Ex PW1/B. After registration of FIR, IO prepared site plan Ex PW1/D, interrogated the accused and gave notice to the accused under Section 41 A CrPC.
6. All the witnesses were cross examined at length by Ld. counsel for the accused.
7. Accused vide statement under Section 294 CrPC admitted the FIR No. 585/2020 PS Jaitpur, endorsement on rukka & DD No. 77 A dated 13.11.2020 are now Ex P1, Ex P2 & Ex P3 and did not press for formal proof of this document and examination of doctors was dispensed with.
8. After the completion of prosecution evidence, the statement of the accused was recorded u/s 313 Cr. PC wherein all the incriminating facts led in evidence against him were put to him, affording an opportunity to give his explanation, if any. In statement recorded u/s 313 Cr.PC, the accused denied the prosecution's case in entirety and stated that he has been falsely implicated in the present case.
State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.3 of 11
9. Thereafter, the matter was listed for final arguments.
10.I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also carefully perused the entire judicial record and carefully appreciated the evidence lead by the prosecution.
11.Ld. APP for State argued that the prosecution with the help of the witnesses examined in this case has proved the recovery of explosive substance from the possession of accused and accused was found selling the said explosive substance. Accused did not lead any evidence to disprove the case of the prosecution while the prosecution has proved its case beyond reasonable doubt.
12.Ld. Counsel for accused argued that no public witness has been examined to prove the recovery of crackers/explosives from the possession of the accused. It was also argued that the recovered case property was not sent to FSL and case property was not specifically described by the prosecution. There are major contradictions in the testimonies of PWs examined by the prosecution and prosecution has failed to show that IO conducted the investigation at the spot. The accused is falsely implicated in this case. Therefore, accused be acquitted in this case.
13.Before appreciating evidence, I must mention the cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts and it always rests on the prosecution. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.4 of 11 any such doubt in the prosecution case entitles the accused to acquittal.
14.In the present matter, charge was framed against the accused u/s 9B(1)(b) Explosive Act 1884 read with Section 286 IPC. It is alleged by the prosecution that the accused was found in possession of 8 kg 100 grams of fire crackers (explosives substance) at her grocery shop without license and permit in contravention of Explosives Rules, 2008.
15.Before coming to the evidence led in the present matter, it is essen-
tial to test that whether the possession of alleged fireworks by the ac- cused is actually prohibited under The Explosives Act, 1884. Section 9B of the said Act prohibits possession of explosives in contraven- tion of the rules made under section 5 of the Act or in contravention of the conditions under which the license was granted. Rule 7 of The Explosives Rule, 2008 prohibits manufacture, import, export, trans- port, possess for sale or use an explosive except as authorized or li- censed. Further, Rule 9 of the said Explosives Rule, 2008 provides that no license shall be necessary in case where possession of fire works does not exceed 100 Kg for own use and which is not for sale. The relevant portion of the same is reproduced as under:
9. No licence needed in certain cases.-- Notwithstanding any-
thing contained in rule 7, no licence shall be necessary for the following cases, namely :--
(5) possession of fireworks not exceeding one hundred kilo-
gram for own use and not for sale;
16.Bare perusal of aforesaid provisions shows that in order to secure conviction under Section 9B(1)(b), Explosive Act 1884, prosecution State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.5 of 11 was required to prove that the recovered fire crackers were meant for sale and not for own use. However, perusal of the testimony of pros- ecution witnesses show that none of them were able to establish that the seized fire crackers were kept by the accused for the purpose of sale. PW-2 merely deposed that he was on patrolling duty when he found that accused was selling crackers/explosive substance and af- ter seeing him she closed the plastic sack (katta).
17.It appears that the only emphasis of the prosecution version is on re-
covery of fire crackers without collecting any evidence whatsoever regarding its intended use. Even the alleged recovery of said fire- crackers from the shop of the accused appears doubtful in view of the fact that neither any photographs of the shop were taken nor any public witness was joined as recovery witness.
18.Prosecution examined two witnesses and in their testimonies it has conclusively come on record that at the time of apprehension of the accused, there were members of general public available at the spot of apprehension, however no independent witness was made to join the investigation. PW-1 and PW-2 has failed to depose to the effect whether notice was given or even the names and addresses of any public persons, whom IO requested to join the investigation was asked for or recorded. PW-2 failed to depose about the departure entry from the police station to the spot and was not having knowledge about the names and addresses of public persons, asked by the IO, to join the investigation. The testimony of PW-2 is discarded being untrustworthy.
State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.6 of 11
19.PW-1 ASI Dharamvir was the Investigating Officer of this case. He, as such did not make any effort, to show that his investigation was done at the spot of occurrence. He did not prepare seal handing over memo for sealing the alleged case property. He did not place on record photographs or video where accused was apprehended and case property was recovered. He did not join public persons in the investigation and did not even give any notice to them or recorded their names and addresses. In fact, he did not refer to any public person, who had not joined the investigation, despite being directed by him. He failed to give reason, as to why he did not ask public persons to join the investigation when he himself admitted that the spot was surrounded by many houses. He did not describe the case property or place on record any evidence to show that the case property seized was 'explosives' within the meaning of Explosives Act. He did not weigh the case property at the spot and no documentary proof regarding the weight of case property has been placed on record. Thus, his testimony was neither trustworthy nor reliable.
20.I am of the opinion that the conduct of the police officials is not justified as the public persons present at or around the place of incident could have been easily joined in the proceedings of the present matter. The IO had ample time to make those independent persons understand the nature of proceedings and their role as a witness. It was incumbent upon the prosecution to at least put forward the reasons for not doing so. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.7 of 11 the prosecution story and false implication of the accused by the police in the present case cannot be ruled out.
21. The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court in Hemraj vs State of Haryana (AIR 2005 SC 2110)"the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case..."
22.Furthermore, in case titled Roop Chand V/s State of Haryana, 1999 (1)C.L.R 69, the Hon'ble High Court of Punjab & Haryana held as following:
"...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 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 he witnesses from the public had refused to 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 after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..."
23.In addition to the aforesaid reasoning, the prosecution has failed to State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.8 of 11 prove the presence of ASI Dharamvir and HC Satyavir at the spot by bringing on record any relevant document showing their arrival and departure from the police station. Such a deficiency is a violation of Rule 22.49 Punjab Police Rules which is adverse to the prosecution version. If they had departed from their PS, the entry to this effect must exist in the Roznamancha but that has not been proved, raising an adverse presumption against the prosecution u/s 114 (g) of the Evidence Act.
24.I am guided by the law laid down in Rattan Lal Vs. State 1987 (2) Crimes 29, Hon'ble Delhi High Court held that;
"wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
25.The site plan Ex.PW1/D was bereft of measurements and details of the locality, where accused was apprehended. There is no witness on the site plan. Therefore, that site plan was vague and did not prove the case of prosecution beyond reasonable doubt.
26.None of the memos viz., Arrest Memo and Personal Search Memo noted any public person details. Possibility of those documents, being prepared at police station cannot be ruled out. Hence, they are discarded by me being untrustworthy.
27.The lapses in the prosecution case further assume significance on account of another grave procedural irregularity apparent in seizure State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.9 of 11 memo Ex. PW1/C. The said document bears FIR number. Careful scrutiny of this document also provides that FIR number has been written by the same person who prepared document Ex.PW1/C. It is an admitted case of the prosecution that the said document was prepared by IO before sending HC Satyavir with Rukka for registration of FIR. This also raises doubt about the recovery of the said case property from the present accused and possibility of false implication of acciused cannot be ruled out.
28.Another lacuna in the prosecution case relates to seal. PW-1 deposed that explosives were sealed with the seal of BVS whereas, PW-2 deposed that katta was sealed with the seal of DRS. IO did not prepare any seal handing over memo.The seal was neither handed over to an independent witness nor deposited in malkhana on time and no proper explanation has come on record as to why seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property cannot be ruled out.
29.As regards Section 286 IPC for which the accused has been charged with, bare perusal of the said provision shows that to bring home the guilt of offence punishable under 286 IPC, it is essential to prove rashness or negligence on the part of the accused while handling the alleged explosives. However, in the present case from the perusal of the entire evidence led on record, it is apparent that prosecution has not led any evidence to prove rashness or negligence on the part of the accused. None of the police witnesses even deposed to the effect that the accused handled the alleged explosives/firecrackers in rash or negligent manner. In absence of such evidence the accused cannot State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.10 of 11 be held guilty of offence punishable under Section 286 IPC.
30.In view of foregoing discussion, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Seema is acquitted of the offence punishable under Section 286 IPC & 9(B) Explosives Act.
Announced in the Open Court On 23.02. 2023 (SHIKHA CHAHAL) MM-11/SED/New Delhi It is certified that this Judgment contains 11 pages and each page bears my signatures.
(SHIKHA CHAHAL) MM-11/SED/New Delhi State Vs. Seema FIR No. : 585/2020 PS : Jaitpur Page no.11 of 11