Delhi District Court
State vs . Balwant Rai Arora Etc. on 8 November, 2011
1
IN THE COURT OF SHRI LOKESH KUMAR SHARMA : ACMM/
NORTH EAST, KARKARDOOMA COURTS, DELHI.
State Vs. Balwant Rai Arora Etc.
FIR No. 799/97
U/S: 419/420/467/468/47 IPC
P.S.: Nand Nagri
(Investigated by Crime Branch)
Date of Institution of case: 29.05.98
Date on which judgment is reserved: 08.11.11
Date on which judgment is delivered: 08.11.11
Unique I.D. No. 02402RO275472003
J U D G M E N T
a) Sl. no. of the case 16C/09
b) Date of commission of offence 19.11.97
c) Name of complainant Dr. Raj Mohan Trivedi
M.O./DHS
EBlock, Saraswati Bhawan,
Connaught Place, New
Delhi
d)Name of accused, his parentage 1. Balwant Rai Arora S/o Devi Dayal Arora R/o 78, Vipin Garden, Nazafgarh Road, Delhi
2. Dr. M. Rehman FIR NO.799/97 Page 1 of 20 pages 2 S/o H. Rehman R/o 532, LIG Flats Loni Road, East Delhi
e) Offence complained of or proved U/S: 419, 420, 467, 468,471 IPC & Section 15 IMC Act & Section 18C, 27B Drugs & Cosmetic Act
f) Plea of the accused Pleaded not guilty
g) Final order : Acquitted
h) Date of such order :08.11.11
j) Brief reasons for the just decision of the case
1. The plight and ordeal of the accused persons had continuously lasted for about 14 years for facing trial in the present case which though had not even any basic reason for its registration as well.
2. Briefly stated that on 22.10.97 one complaint was made by one Sh. Raj Mohan Trivedi who at the relevant point of time was working as Medical Officer with the Directorate Health Services, Government of NCT of Delhi having its office at Saraswati Bhawan, Connaught Place, New Delhi. In his complaint addressed to Additional DCP Crime Branch, he had complained FIR NO.799/97 Page 2 of 20 pages 3 about Dr. M. Rehman resident of C228, Rehman Clinic, LIG Flats, Loni Road, Delhi95 who was stated to be practicing in Allopathy and Ayurvedic system of medicines without having a valid qualification and registration in this regard but still he was impersonating himself as qualified practitioner. On this complaint, on 19.11.97 the team consisting of SI Tej Singh, SI S. Mohan, HC Paramjeet, Ct. Daleep Singh, Ct. Ashok Kumar, photographer Ct. Sushil Kumar and Drug Inspector K.R. Chawla under supervision of ACP V.K. Sobti had conducted a raid at the said premises where clinic was stated to be allegedly found opened and one Devender Rawat son of Sh. P.S. Rawat who was working as a Medical representative was also found present there. However, Dr. M. Rehman was not present at his clinic and was stated to have gone outside to visit a patient in the locality and upon search of the clinic, some medicines namely Ciprosol eye drop, gentamicine injection, neurovion, Fort ampel alongwith medical equipment as identified by the Drug Inspector Sh. K.R. Chawla were taken into possession by the IO and were seized and sealed. This scene was also got photographed and thereafter on a FIR NO.799/97 Page 3 of 20 pages 4 rukka prepared by SI Tej Singh in this regard, an FIR under Section 419/420 IPC, Section 15 Indian Medical Council Act, Section 18C & 27B Drugs and Cosmetic Act 1940 was registered against accused Dr. M. Rehman who had further disclosed about obtaining the alleged forged and fabricated certificate of registration from one Delhi Degree College managed and run by coaccused Balwant Rai Arora . Accordingly, on 08.01.98 a raid was conducted at the aforesaid premises of accused Balwant Rai Arora bearing no. 78, Vipin Garden, Nazafgarh, Delhi where accused was found present and police had also recovered three blank certificates and one rubber stamp of "Manager, Delhi Degree College" was also recovered from the spot and accordingly accused Balwant Rai Arora was also arrested in the present case. After completion of the investigation the present challan was filed before the court and both the accused were produced for trial. Accused were granted bail by court order being involved in a non bailable offence.
3. After filing of the chargesheet, cognizance of offence was taken against both the accused persons by the learned predecessor of FIR NO.799/97 Page 4 of 20 pages 5 this court and they were summoned to face trial. The accused persons had also duly appeared before the court to contest this case on merits. Charge for the offences as alleged above were framed against both the accused on 12.11.07 to which they had pleaded not guilty and claimed trial.
4. In order to prove its case against the accused persons, prosecution had examined eleven witnesses in all. For the purpose of convenience, it shall be relevant to divide the witnesses in three categories in relation to the respective accused persons as well as the common witnesses. Firstly, I shall deal with the common witnesses in this case.
COMMON WITNESSES
5. The only common witness examined in this case is PW10 ASI Khurshid Ali who was posted as HC at police station Nand Nagari on 19.11.97 and was working as Duty Officer having his working hours from 8:00am to 4:00pm and had proved on record the carbon copy of FIR NO. 799/97 as Ex. PW10/A and his endorsement on rukka as Ex. PW10/B. This witness was not cross examined by the accused persons despite opportunity given to FIR NO.799/97 Page 5 of 20 pages 6 them in this regard.
WITNESSES EXAMINED AGAINST ACCUSED M. REHMAN
6. PW1 Sh. Arvind Kumar, PW2 Sh. Raj Mohan Trivedi, PW3 Sh. K.R. Chawla, PW7 Ct.Mool Chand, PW8 Irfan son of Sh. Bhure Khan and PW11 Ikrar Ahmed son of late Sh. Hasmatullah were the witnesses examined by the prosecution against accused M. Rehman to prove his guilt on record beyond reasonable doubt. However, even all these witnesses Sh. Arvind Kumar, PW8 Irfan son of Sh.Bhure Khan and PW11 Ikrar Ahmed son of Sh.Hasmatullah who were the allegedly independent public witnesses had completely turned hostile and had not supported the case of prosecution at all.
7. PW7 Ct. Mool Chand is a formal witness who had deposed regarding seizure of RMP certificate issued by the Delhi Degree College (Certificate of merit) produced by accused M. Rehman before the IO on 08.12.97 which was seized vide seizure memo Ex.PW7/A. He was not cross examined by the learned counsel for the accused despite opportunity given to him in this regard.
8. The most material witness in this case is the complainant himself FIR NO.799/97 Page 6 of 20 pages 7 who had stepped into the witness box as PW2 namely Sh. Raj Mohan Trivedi, Chief Medical Officer of Baba Saheb Ambedkar Hospital had deposed that on 22.10.2007 he was posted at the office of Directorate of Health Services Saraswati Bhawan,Connaught Place,New Delhi as medical officer and was officiating as Nodal Officer of Anti Quackery Cell and had visited the clinic of accused M. Rahman situated at C228, LIG Flats,Loni Road, Delhi where he was running a clinic under the name and style of Rehman Clinic. When he was asked to produce his certificates, accused had failed to produce any certificate authorising him to practice in Allopathic, Homeopathic or ayurvedic medicine and hence a complaint in this regard was made by PW2 to Additional DCP of Crime Branch which was proved on record as Ex. PW2/A.
9. During his cross examination by the learned counsel for accused persons, he had deposed that although there was no written complaint against accused M. Rehman but they used to conduct such anti quackery raids consequent to the directions issued by Hon'ble High Court of Delhi and he was appointed as Nodal FIR NO.799/97 Page 7 of 20 pages 8 Officer of the Committee by the Director of Health Services but he could not produce any such copy of orders of his appointment on record. This witness had further deposed that 1 or 2 persons were also found sitting on 22.10.97 at the clinic of accused during his visit but he had not disclosed the purpose of his visit to those persons. Neither he had noted down the names and addresses of those persons. The area where the clinic was being run by the accused was stated to be situated in a residential locality. Witness had not made any report in office regarding his departure for the visit. He had declined the suggestion put to him during his cross examination on behalf of accused persons that he had never visited the clinic and had prepared a false report while sitting in the office only.
10.It is interesting to note and point out here itself that in his entire deposition, the witness had not identified the accused M. Rehman who was present in the court at the time of his deposition.
11. PW3 Sh. K.R. Chawla, Drugs Inspector had deposed that on 19.11.97, he had also joined the raiding party comprising of FIR NO.799/97 Page 8 of 20 pages 9 himself and few other police officials who had conducted raid at Rehman Clinic, C228,LIG Flats, Loni Road, Delhi where he had found one person namely Devender Rawat, medical representative from M/s. Helios Pharmaceutical present in the clinic and waiting for accused M. Rehman who was stated to have gone outside in neighbourhood to see one patient. The members of the raiding party had waited for the return of the accused to clinic but when he could not return for quite some time then raid proceedings were conducted at 12:50pm and IO had taken various drugs in his possession vide seizure memo Ex. PW3/A comprising of Cyprosol eye drops, gentamycin injection, dexamethesone injection, some disposable syringes (both used and unused as well), some ointments namely whitfile and nitrofurozone cream, some tablets and oils and other medicines alongwith some other medical equipments i.e. B.P.Metre, Stethoscope and surgical dress with scissors. After seizure of the aforesaid articles by the IO, the drawer of the table of the accused's clinic was opened and a fifty rupee currency note was taken out from the drawer which was taken into possession vide FIR NO.799/97 Page 9 of 20 pages 10 seizure memo Ex.PW3/B. IO had also got photographs clicked at the spot which were mark A to H on record and witnesses had identified the entire case property as Ex. P1.
12. However he had also not identified the accused M. Rehman who was present in the court at the time of his deposition. It is also relevant and necessary to mention here that nowhere the present witness who was a qualified Drug Inspector had deposed that any of the drugs or medicines allegedly recovered from the clinic of the accused were belonging to the restricted schedule which could have been administered only by a qualified MBBS doctor and without whose prescription, the same could not have been made available by the local chemist as against the drugs or medicines which could be directly made available to the people at large by counter sale from the shop of a chemist and the court is not precluded from taking a judicial notice of the fact that normally everyone in India keeps some general medicines in his house without getting the same prescribed from the qualified doctor and by obtaining the same through direct counter sale from the chemist shop.
FIR NO.799/97 Page 10 of 20 pages 11
13. Hence from the examination of all the aforesaid witnesses by the prosecution, it could not be said that the allegations contained in the chargesheet stood proved against the accused M. Rehman beyond any reasonable doubt.
WITNESSES AGAINST THE ACCUSED BALWANT RAI ARORA
14. Prosecution had examined PW4 Dr. K.K. Arora, PW5 Dr. D.D. Senwal, PW6 SI Paramjeet Singh and PW9 Sh. P.R. Sharma against accused Balwant Rai Aora to prove his guilt beyond any reasonable doubt.
15. PW4 Dr. K. K. Arora had deposed that in the year 1997, he was working as Deputy Secretary with the Medical Council of India who was having its current office at pocket 14, Sector 8, Dwarka, New Delhi 77. The police officials of crime branch had shown him a RMP certificate issued by Delhi Degree College to which he had confirmed that there was no such college by the aforesaid name which was approved or recognised by the medical Council of India and RMP was not a medical qualification. Photocopy of his reply in this regard had been placed and proved on record as Ex. PW4/A. FIR NO.799/97 Page 11 of 20 pages 12
16. During his cross examination, he had failed to remember the name of the IO who had approached him nor he was able to tell number of police personnel accompanying the IO during his visit to his office. Witness had also stated that before giving his opinion regarding the said Delhi Degree College, he had gone through the said list containing names of recognized medical colleges at that particular point of time. However, he had failed to remember if he had handed over the said list to the IO or not but admitted the fact that no such copy was available on judicial record. Further he had admitted it to be correct that he had seen accused Balwant Rai for the first time in the court itself on the date of his deposition and had never personally seen him running the alleged college at the specified place.
17. PW5 Dr. D.D. Senwal had deposed that at the relevant point of time he was posted as Registrar at Board of Aurvedic and Unani Systems of Medicine falling under Delhi Administration and Delhi Degree College was neither recognized by nor registered under their organisation and hence any person containing any certificate or degree from that college was not recognized as FIR NO.799/97 Page 12 of 20 pages 13 registered medical practitioner as per their record and had proved his letter written in this regard as Ex. PW5/A on record.
18. During his cross examination, he had stated that he had only given his report Ex.PW5/A and had not handed over any copy of register to any body. Further he had stated that he had only checked as to whether the name of Delhi Degree College was there in their register or not and had never made any attempt to find out the system of medicines in which the aforesaid college had issued its certificate. Further he had deposed that registered medical practitioner certificates were also issued by some other institutions whose list was also maintained by them and they were also maintaining the list of qualified medical practitioner.
19.PW6 SI Paramjeet Singh Singh deposed that 08.01.98, he alongwith IO SI Tej Singh, Inspector Sube Ram and Ct. Murari Lal went in a government vehicle at the house of accused Balwant Rai Arora situated at 78, Vipin Garden Najafgarh Road where accused was found present and it was also revealed that one Delhi Degree College was also being run from the said premises. IO questioned the accused regarding the RMP certificate issued by him in favour FIR NO.799/97 Page 13 of 20 pages 14 of accused Dr. M. Rehman and copy thereof was also shown to him to which he had admitted the fact regarding issuance and preparation of said certificate document and when he was questioned regarding recognition/permission to issue such certificate, he could not furnish any satisfactory reply to the same. Thereafter the raiding party conducted a formal search of his premises wherein his office was allegedly run and three blank RMP certificates and one rubber stamp of "Manager Delhi Degree College" were recovered by the IO which was seized vide seizure memo Ex. PW6/A. Accused was arrested in this case by the IO and his personal search was conducted vide personal search memo Ex. PW6/B, and he was thereafter brought to the lock up of police station Hauz Khas.
20. During his cross examination, he had stated that they had gone in government vehicle but was not been able to cite its registration number. No written notice was given by the IO to any passersby to join the proceedings. Despite admission of the fact that spot was situated in a thickly populated area it was deposed by PW6 that IO had not called any local respectable from the FIR NO.799/97 Page 14 of 20 pages 15 locality before conducting any raid in the said premises. Even co accused M. Rehman was also stated to be not accompanying the police officials on the said date and witness had expressed his inability to tell as to how the IO had identified the said premises to be raided by the team who had directly reached at the house of accused Balwant Rai Arora and it was stated to be the first door knocked by the said team. Witness had not joined any proceedings in this case after 08.01.98.
21. PW9 Sh. P.R. Sharma, Secretary, Central Council of Indian Medicine had deposed that upon query from the police he had reported that Delhi Degree College was not recognised by CCIM and had also issued a letter, the copy of which was mark A.
22. During cross examination by learned defence counsel, he had stated that he had not provided any list of recognized institutes who were entitled to award degree in ayurvedic medicine. He had admitted it to be correct that besides issuing letter mark A, no other record was handed over to the police officials by the said witness. He had denied the suggestion put to him that the Government of India had permitted the unqualified medical FIR NO.799/97 Page 15 of 20 pages 16 practitioners to practice medicine except surgery.
23. Thereafter, PE was closed.
24. Both accused persons were examined u/s 313 Cr.P.C and all the incriminating evidence appearing on record against them had been put to them in their vernacular language to which they had stated that they were innocent and had been falsely implicated and had declined to lead any evidence in their defence.
25. I have heard learned APP appearing for the State as well as learned counsels appearing for respective accused persons and perused the record.
26. Some of the lacunas in the prosecution story and shortfalls coupled with the contradictions in the deposition of witnesses have already been pointed out earlier while appreciating the evidence appearing on record against the respective accused persons. However, I may further add here that the genesis of the entire case lies in the alleged certificate issued by accused Balwant Rai Arora on the basis of which accused M. Rehman had allegedly claimed himself to be a RMP doctor and was practicing medicines as his profession.
FIR NO.799/97 Page 16 of 20 pages 17
27. A bare perusal of the contents of the certificate Ex. P2 alongwith the other blank certificates allegedly recovered by the investigating agency from the office of accused Balwant Rai Arora would make it amply clear that from the clear, categorical and unambiguous language of the said certificate of merit itself only the experience of a person in a specific field of medicine had been recognised instead of authorising him to practice in any particular field of medicine. A certificate issued for recognition of something is different from the certificate issued to someone authorising him to do something. As such a certificate of recognition issued to a person does not constitute any offence of such nature as has been alleged in the present case. Furthermore, IO of the case SI Tej Singh had not been examined owing to his death nor any other police official constituting the raiding party was examined to prove the factum of raid at the premises of accused M. Rehman on 19.11.97 even the forensic report placed on record with respect to the signatures of accused Balwant Rai Arora appearing on the questioned documents when compared with his specimen signatures does not find favour with the FIR NO.799/97 Page 17 of 20 pages 18 prosecution story and it had been categorically held in the said report that no opinion can be expressed after comparison of signatures appearing on document Q1 to Q4 upon their comparison with his signatures available in the form of S1 to S4.Not only this but also even the photographs allegedly taken at the instance of IO at the spot have also not duly proved on record as per requirements of the provisions of Indian Evidence Act because their negatives were never produced before the court. So far as recovery of currency note in the denomination of Rs.50/ from the drawer of accused M. Rehman is concerned, no witness was either cited or produced by the investigating agency to have claimed that said amount was given to him by patient as a consultation fee for getting treatment from him. All these lacunas and short falls in the story of prosecution are fatal for its own case and cannot be brushed setaside in a lighter manner.
28. None of the witnesses cited or examined by the prosecution had deposed that accused M. Rehman had at any given point of time, cheated him/her by posing himself as a qualified M.B.B.S./Ayurvedic/Unani or Homeopathic doctor, so the FIR NO.799/97 Page 18 of 20 pages 19 question of proving of allegations regarding an offence under Section 419/420 IPC against this accused does not arise at all.
Similarly none of the institutions with the name of 'Delhi Degree College' had ever made any complaint against accused Balwant Rai Arora, that he had printed forged, fake or fabricated certificate resembling to those actually belonging to original institutions/organisation and was using the same as genuine with an intention to malign its own reputation and/or status, thus no such offence under Section 419/420/468/471 IPC is either made out against this accused as well.
29. Further, since none of the accused persons had claimed themselves either registered with or authorised by the IMC (Indian Medical Council) to act on its behalf in any manner whatsoever, hence no offence under Section 15 IMC Act is made out against them as well. Similarly in the absence of any cogent evidence appearing on record against either of them in the present case, even the provisions of Drugs and Cosmetics Act 1940 also do not get attracted against them.
30. Further, the investigating agency has not been able to explain FIR NO.799/97 Page 19 of 20 pages 20 the reason for its sleeping over the matter for about 27 days in conducting the alleged raid because the complaint was given to DCP, Crime Branch on 22.10.97 and raid was conducted only on 19.11.97.
31. It is a cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubt and all the benefits arising from the lacunaes of the prosecution must be given to the accused persons. Hence, in my opinion, prosecution had failed to bring such material on record which would have gone to establish the guilt of the accused persons beyond any reasonable doubt holding them guilty for the offence alleged to have been committed by them resulting into their conviction and sentence. The accused are, therefore, acquitted. Their PBs/SBs stand cancelled and discharged. File be consigned to record room after completion of necessary formalities. ANNOUNCED IN OPEN COURT ON 08.11.2011 (LOKESH KUMAR SHARMA) ACMMII, North East, KARKARDOOMA COURTS:
DELHI FIR NO.799/97 Page 20 of 20 pages