Delhi District Court
State vs : Ashu Gupta on 16 April, 2015
IN THE COURT OF SH. SUDHANSHU KAUSHIK : ACMM-01 :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI State Vs : Ashu Gupta FIR No. : 617/2004 U/s : 9B Explosive Act & 286 IPC PS : Karol Bagh Unique Identification No. 02401R0693392005 Date of Institution: 07.05.2005 Date of Judgment reserved on: 16.04.2015 Date of Judgment: 16.04.2015 Brief details of the case A. Sl. No. of the case 326/P B. Offence complained of or proved U/s 9B Explosive Act & 286 IPC C. Date of Offence 11.11.2004 D. Name of the complainant SI Sanjay Goswami No.D-280 PIS No.27880089 AATS, Crime Branch, R.K.Puram, New Delhi E. Name of the accused Ashu Gupta S/o Subhash Gupta R/o H.No.24/3864, Ragar Pura, Karol Bagh, New Delhi F. Plea of the accused Pleaded not guilty G. Final order Acquitted H. Date of Order 16.04.2015 Judgment On the accusation of being found in possession of fire crackers weighing around 515 kgs without carrying the requisite license prescribed under the Explosive Act 1884 (hereinafter referred to as ' the Act' ), Ashu Gupta FIR No.617/2004 State Vs Ashu Gupta Page 1 of 11 (hereinafter referred to as ' accused' ) was sent up to face trial for committing offences punishable under Section 9-B of the Act and Section 286 of Indian Penal Code (IPC).
Brief facts as unfolded during the trial
2. The case of prosecution is that on 11.11.2004, at around 12.00 PM, in the area of Karol Bagh, police officials of Crime Branch including SI Sanjay Goswami (PW-4), HC Har Phool Singh (PW-2) and HC Chander Hass (PW-3) received a secret information that accused had kept huge quantity of fire crackers at his shop bearing number 3864/24, Raigarpura, Karol Bagh, New Delhi without obtaining the requisite license prescribed under the Act. In the meantime, SI Lekh Ram (PW-7), posted at the local police station (Karol Bagh), arrived there and met these police officials who shared the secret information with him. A raiding party was constituted. Public persons were requested to join investigation but they did not agree. At around 12.30 PM, the raiding party reached the pre-disclosed shop bearing number 3864/24 where the accused was found sitting with the crackers. It is the prosecution' s case that accused failed to produce the requisite license for possessing the fire crackers kept by him at his shop. Photographs of the spot were taken. Samples were drawn and the remaining fire crackers were kept in different plastic bags which were sealed with the seal of ' SG' and these bags were deposited at the Malkhana. In the said background, present FIR bearing number 617/2004 under Section 9B of the Act and Section 286 IPC was registered at Police Station Karol Bagh.
FIR No.617/2004 State Vs Ashu Gupta Page 2 of 11
3. The prosecution' s case proceeds further that after registration of FIR, SI Jai Veer (PW-6) arrived at the spot and arrested the accused. During investigation, it was found that the adjacent sweet shop owner was using a gas burner for preparing sweets which could have resulted in an accident. Statement of witnesses were recorded and after completion of investigation, charge-sheet was put to the court. Copies of the charge-sheet were supplied to the accused and on the basis of the same, charges under Section 9B of the Act and Section 286 IPC were framed against him to which he pleaded ' not guilty' and claimed trial.
Witnesses examined
4. Seven prosecution witnesses were examined.
Members of the Raiding Team PW-2 HC Har Phool Singh PW-3 HC Chander Hass PW-4 SI Sanjay Goswami PW-7 SI Lekh Singh Formal Witness PW-1 ASI Vedwati (Duty Officer) Investigating Officers PW-6 SI Jai Veer Singh (First Investigating Officer) PW-5 ASI Bhem Singh (Second Investigating Officer)
5. Statement of accused was recorded under Section 313 Cr.P.C wherein he denied all the incriminating evidence. He took the defence of false FIR No.617/2004 State Vs Ashu Gupta Page 3 of 11 implication and stated that witnesses have falsely deposed against him. He mentioned that his uncle was the owner of shop No.3864/24 from where the purported recovery is stated to have been effected. He mentioned that his uncle was carrying a valid license for possessing the fire crackers but police officials deliberately implicated him in the present case. He mentioned that his father was selling crackers from Shop No.3871/24, Raigarpura, Karol Bagh, New Delhi which was located in front of the shop No.3864/24 and he was also possessing the requisite license. He stated that police officials demanded money from him and when he refused to concede to their illegal demand, they falsely implicated him. No defence witness was examined.
Arguments
6. I have heard the rival arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel.
7. Ld APP has argued that prosecution' s case stands established to the hilt. He contended that there is overwhelming evidence on record to establish that accused was found in possession of explosive substance (fire crackers) without carrying the requisite license prescribed under the Act. He argued that there is no reason to doubt the testimony of police officials merely because public witnesses refused to join the investigation. He stated that although there are minor contradictions in the testimony of recovery witnesses but the same are inconsequential. He argued that there is reluctance amongst the general public to join recovery proceedings and this reluctance should be borne in mind while appreciating the arguments of defence about the absence of public FIR No.617/2004 State Vs Ashu Gupta Page 4 of 11 witnesses.
8. On the other hand, Ld defence counsel argued that prosecution has miserably failed to prove the charges against the accused. He contended that there are glaring and irreconcilable contradictions in the testimony of recovery witnesses. He argued that although, the owner of the shop was carrying a valid license but the police officials deliberately concealed this fact. He pointed out towards the infirmities in the investigation and stated that all the documents were prepared at the police station. He mentioned that the samples obtained by the police officials were never sent to the FSL and the case property was produced in the court in unsealed condition. On the force of these contentions, counsel has prayed that the accused should be acquitted.
9. I have perused the record in the light of respective arguments.
Brief reasons for the decision
10. In order to establish charge under Section 9-B of the Act, prosecution was duty bound to establish that fire crackers were recovered from the possession of accused and he was holding those fire crackers either without obtaining the prescribed license from the competent authority under the Act or in contravention of the rules made under Section 5 of the Act or in violation of the conditions on which the license was granted under the rules.
11. In order to establish recovery of fire crackers, prosecution has relied upon the testimony of members of the raiding party i.e. HC Har Phool Singh (PW-2), HC Chander Hass (PW-3), SI Sanjay Goswami (PW-4) and Insp. Lekh Singh (PW-7). Ld. Defence Counsel has challenged the testimony of FIR No.617/2004 State Vs Ashu Gupta Page 5 of 11 these witnesses primarily on the aspect that there are material contradictions in their statement. After going through the testimony of these witnesses, I find force in the arguments of the defence counsel. There are various contradictions in the testimony of these witnesses which raises doubt over their presence at the spot.
12. HC Har Phool Singh (PW-2) supported recovery during his examination-in-chief but deposed various inconsistent facts during his cross examination. He stated that at the time when the raiding party reached the spot, 2-3 customers were also present at the shop of accused. On being confronted with his earlier statement recorded under Section 161 Cr.P.C, he conceded that he did not mention the said fact to the Investigation Officer. On the other hand, SI Lekh Raj (PW-7) mentioned in his cross examination that at the time of raid, no customer was found present at the shop. It is not possible to reconcile both the statements. At one place, HC Har Phool Singh stated that the shop consisted of ground floor only but thereafter he corrected himself by stating that there was a basement in the shop. He went to the extent of stating that in fact, the shop number 3864/24 was located in a multi-storied building having three floors and accused used to reside above the shop. On the other hand, SI Jai Veer (PW-6) stated that the shop consisted of a room only and he did not notice any mesanine floor or basement in the shop. Different versions have been tendered about the customers found present at the shop. HC Har Phool Singh stated that when the raiding party reached the shop, accused was found sitting with crackers and in the meantime, 2-3 persons came there for purchasing FIR No.617/2004 State Vs Ashu Gupta Page 6 of 11 crackers but accused directed them to come later. HC Chander Hass (PW-3) stated that on seeing the raiding party, the customers left the shop and accused disclosed that the shop is owned by his father. It appears from the cross examination of this witness that in fact, he has conveyed that the recovery was made from shop No.3871/24 as the description given by him of the shop is altogether different. He mentioned that the shop was mesanine floor and he can not tell whether there was any basement in the shop. He has mentioned in his cross examination that fire crackers were also seized from two other shops but the other witnesses remained absolutely silent on this aspect. Other recovery witnesses have not stated that fire crackers from the other shops were also seized. These contradictions in the testimony of witnesses creates doubt and raises question mark over their veracity. Contradictions have also come on record about the presence of public persons and the efforts made by the police officials to join those witnesses.
13. It is the prosecution' s case that accused knowing or negligently omitted to take such order with the fire crackers in his possession as is sufficient to guard any probable danger to human life from that substance. The allegations against the accused were that it was found in the adjacent sweet shop that the shopkeeper was using a gas burner for preparing sweets. The prosecution seems to have built up its case that the use of burner by the adjacent shopkeeper amounts to negligence of accused. There are inherent weaknesses in the prosecution' s case. Moreover, no investigation in this regard has been carried out. HC Har Phool (PW-2) stated in his cross examination that FIR No.617/2004 State Vs Ashu Gupta Page 7 of 11 SI Sanjay Goswami did not visit the adjacent sweet shop. He has categorically admitted in his cross examination that no inquiry from the adjacent shopkeeper was made. HC Chander Hass (PW-3) also stated in his cross examination that SI Sanjay Goswami did not make any inquiry from the adjacent sweet shop about the gas stove being used there. SI Sanjay Goswami (PW-3) himself remained absolutely silent about inquiry being conducted by him about the gas stove. He did not even whisper a word in this regard. The shopkeeper running the sweet shop was not made a witness. There is not even an iota of evidence to conclude that gas stove was being used in the adjacent shop from where the fire crackers were purportedly recovered. In these circumstances, it can be safely concluded that charge under Section 286 IPC in respect of negligent conduct of the accused has not been substantiated.
14. It is the prosecution' s case that the fire crackers recovered from the possession of accused were weighed on the spot itself and its weight was found to be 515 kgs but there is no cogent evidence to establish this fact. Recovery witnesses have given a vague account of this fact and their testimony does not inspire confidence. HC Har Phool Singh stated in his cross examination that Investigating Officer (IO) weighed the seized fire crackers on an electronic weighing scale. On the other hand, HC Chander Hass stated that the crackers were weighed by the local police and the weighing machine was arranged by them only. He could not tell from where the weighing machine was arranged. SI Lekh Raj was the only police official from the local police station who was the member of the raiding team but he stated that the fire crackers were FIR No.617/2004 State Vs Ashu Gupta Page 8 of 11 weighed by SI Sanjay Goswami. SI Jai Veer (PW-6), who was the subsequent Investigating Officer, has nowhere stated that he weighed the fire crackers. Thus, there are apparent inconsistencies in the testimony of witnesses about the manner in which the fire crackers were weighed. No documentary evidence has been tendered to corroborate the version of SI Sanjay Goswami that the case property was weighed by him. There is no evidence to suggest that the weight of packaging material was excluded was weighing the fire crackers. Rather, the evidence is to the contrary. SI Lekh Raj (PW-7) admitted in his cross examination that IO weighed all the fire crackers in the same condition as they were found.
15. The prosecution' s story appears to be doubtful while on the other hand, the defence raised by the accused is probable. Accused has put forward a defence that the shop bearing No.3864/24 from where the fire crackers were recovered was owned by his uncle who was carrying a valid license issued by the competent authority. He confronted the prosecution witnesses with the said license which are Mark-X (colly). Although, this document has not been proved but that does not mean that the defence should be rejected merely because of this reason. In a criminal trial, the prosecution is bound to establish its case beyond reasonable doubt while on the other hand, it is only called upon the accused to put forward a defence which is believable. Ordinarily, the defence put forward by him would be accepted unless it is improbable or unbelievable. The accused is required to establish his defence on the preponderance of probabilities and strict proof beyond reasonable doubt is not required. Record FIR No.617/2004 State Vs Ashu Gupta Page 9 of 11 shows that through out the trial, accused took the defence that shop No.3864/24 was owned by his uncle who had obtained the requisite license for sale of fire crackers from his said shop. Suggestions in conformity with this line of defence were put to the witnesses and they were confronted with the photocopies of licenses issued in respect of Shop No.3871/24 as well as Shop No.3864/24. Even in the statement recorded under Section 313 Cr.P.C, accused stated that his uncle was holding a valid license for possessing and selling fire crackers from Shop No.3864/24. Police officials did not make any inquiry from the adjacent shop to establish that Shop No.3864/24 was owned by the accused or that he was managing and controlling the said shop. In order to establish possession, there should have been some independent material to demonstrate that accused was in actual control of the shop. Neither any document was collected nor any witness was examined to establish this fact. Contradictory versions have come on record about the inquiry made in respect of the shop. HC Har Phool Singh (PW-2) stated in his cross examination that SI Sanjay Goswami did not make any inquiry regarding the ownership of Shop No. 3864/24 while HC Chander Hass (PW-3) stated that inquiries about the ownership were made from the adjacent shop. These contradictory versions are not believable. Moreover, SI Sanjay Goswami himself did not mention that he made any inquiries to ascertain the ownership of the Shop No.3864/24. In these circumstances, the defence of the accused does appear probable and the same has to be accepted.
16. In view of discussions made in afore-stated paras, I am of the FIR No.617/2004 State Vs Ashu Gupta Page 10 of 11 considered opinion that charges under Section 9-B of the Act and Section 286 IPC have not been proved. There are material contradictions in the testimony of recovery witnesses. No public witness was joined at the time of recovery. Efforts were not made to join persons from locality or adjacent shops to ascertain the ownership of the shop. The story that case property was weighed at the shop itself is doubtful. No documentary evidence in respect of weighing of the seized crackers was produced. The seized samples were never sent to the FSL. The entire investigation has been done by SI Sanjay Goswami who was a member of the raiding team. No investigation was done to establish that gas stove was being used in the adjacent shop. All these shortcomings lead to the inevitable conclusion that charges have not been established beyond resonable doubt. Accordingly, Accused Ashu Gupta stands acquitted from the charges under Section 9B of the Act and Section 286 IPC on the ground of benefit of doubt.
File be consigned to record room after necessary compliance.
Announced in open Court (SUDHANSHU KAUSHIK)
on 16.04.2015 ACMM-01, Central District,
Tis Hazari Courts, Delhi
It is certified that this judgment contains Eleven (11) pages and each page bears my signatures.
(SUDHANSHU KAUSHIK) ACMM-01, Central District, Tis Hazari Courts, Delhi FIR No.617/2004 State Vs Ashu Gupta Page 11 of 11