Delhi District Court
State vs Rakesh Bansal on 1 March, 2024
IN THE COURT OF HARSHAL NEGI
METROPOLITAN MAGISTRATE-02, DWARKA COURT, NEW DELHI.
FIR No.: 0832/2020
PS: Dabri
U/s: 9(B) Explosives Act
Case no. 11754/2021
State
Vs.
Rakesh Bansal
S/o Sh. Om Prakash Bansal
R/o E-14, Gali No. 7, Main Raja Puri Road,
Uttam Nagar, Dabri, Dwarka, Delhi. ..... Accused
S. No. of the case : 11754/2021
The date of offence : 06.11.2020
The name of the complainant : Raj Kumar
The name of the accused : Rakesh Bansal
The offence complained : 9(B) Explosives Act
The plea of the accused : Pleaded not guilty
Argument heard on : 06.02.2024
The date of order : 01.03.2024
The final order : Acquitted
Brief Facts
1. It is the case of the prosecution that on 06.11.2020 HC Ajay Kumar along with HC Raj Kumar were on patrolling duty at beat No 8 and HC Raj Kumar was informed by a secret informaer that there are fire crackers in Shop No E-14, Gali No 7, Raja Puri Road. On reaching the given address they met the accused and after inspecting the shop, fire crackers were found and on being asked about the license regarding the sale of fire cracker the accused failed to produce any license. Thereafter, an FIR bearing no. 832/2020 u/s 9B of Explosive Act 1984 was registered at PS Dabri. Investigation of the case was handed over to Investigating Officer HC Raj Kumar who also filed the chargesheet.
FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 1/13
2. On completion of investigation, a chargesheet u/s 9B of Explosive Act 1884 was filed against the present accused, i.e., Rakesh Bansal. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 9B of Explosive Act 1884 was framed against him, to which he had pleaded not guilty and claimed trial. Inadvertently Section 188 IPC was mentioned along with Section 9B of Explosives Act 1884 wherein the present matter only deals with 9B of Explosive Act 1884.
4. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of FIR. Thus, witnesses at serial no 3 was deleted from the list of witnesses.
5. During the course of the trial the prosecution examined the following witnesses:
i. HC Ajay Kumar was examined as PW 1. In his examination in chief he stated that on 06.11.2020 he was posted at PS Dabri as Constable. On that day he along with HC Raj Kumar was on patrolling duty in beat No 8 at about 8.30 pm. HC Raj Kumar was informed by a secret informer that there are fire crackers in Shop No E14, Gali No 7, Raja Puri Road. After that IO asked 4-5 persons to join the investigation, however, all persons refused by stating their personal reasons and without stating their names. Thereafter, he along with HC Raj Kumar( IO) and secret informer reached the above stated shop. After reaching there secret informer pointed towards the shop. Inside the shop they met Rakesh Bansal i.e. accused and after inspecting the shop, fire crackers were found in the shop. After that IO asked the accused about the license regarding the sale of fire crackers. Accused did not produce any license. From the atta chakki shop opposite to the alleged shop, he brought four plastic katas in which fire crackers FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 2/13 were kept. Thereafter, all were sealed with the seal of RK vide seizure memo Ex PW1/A bearing his signature at point A after weighing the same from the atta chakki shop, plastic katta at S. No 1 weighed 14.3 kg, plastic katta at S No. 2 weighed 9.9 kg, plastic katta at S No. 3 weighed 8.2 kg, plastic katta at S No. 4 weighed 2.2 kg, in total 34.6 kg. IO prepared the rukka in his presence Ex PW1/B. After that IO handed over seal to him and gave him the rukka for registration of FIR. Thereafter, he went to PS and got the FIR registered, after sometime, he came back at the spot and handed over copy of FIR and original rukka to IO. IO arrested the accused vide arrest memo Ex PW1/C bearing his signature at point A. IO recorded disclosure statement of the accused vide memo Ex PW1/D, bearing his signature at point A. IO released the accused on pabandinama. IO prepared site plan in his presence Ex PW1/E bearing his signature at point A. IO recorded his statement under Section 161 CRPC. He can identify the accused. (Accused is present in Court and correctly identified by the witness.) He can identify the case property if shown to him. (At this stage photographs placed in judicial file shown to the witness. The same is correctly identified by the witness. The same is Ex PW1/F (Colly). ii. In his cross examination he stated that the shop from where the 4 plastic katas were brought is near to the alleged shop. He do not remember the name of the shop from which plastic katas were brought. The statement of the owner of the shop was not recorded in his presence. He cannot tell the exact location of the aata chakki shop, however, it was opposite to the alleged shop. He reached at the spot along with the IO at 8.30 pm. They left the spot after about 1 to 1.5 hrs. Public persons were present at the spot. No notice was served to any of the public persons in his presence. There were residential houses and shops near the alleged spot. He left the spot at about 10 pm for registration of FIR and came back to the spot at FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 3/13 about 11 pm. The case property was taken to the PS in E-rickshaw. All the case property was kept in white plastic katta and not in plastic bag. He do not know where the cloth with which the plastic katta was sealed was brought by the IO. He denied the suggestion that he is deposing falsely at the instance of the IO or the case property was not recovered from the custody of the accused or the same was planted on him. iii. ASI Raj Kumar was examined as PW2. He stated that on 06.11.2020 he was posted at PS Dabri as Head Constable. On that day he along with Ct Ajay was on patrolling duty in beat No 8 at about 8.30 pm. He was informed by a secret informer that there are fire crackers in Shop No E14, Gali No 7, Raja Puri Road. After that he asked 4-5 persons to join the investigation, however, all persons refused by stating their personal reasons and without stating their names. Thereafter, he along with Ct Ajay and secret informer reached the above stated shop. After reaching there secret informer pointed towards the shop. Inside the shop they met Rakesh Bansal i.e. accused and after inspecting the shop, fire crackers were found in the shop. After that he asked the accused about the license regarding the sale of fire crackers. Accused did not produce any license. From the atta chakki shop opposite to the alleged shop, Ct Ajay brought four plastic katas in which fire crackers were kept. Thereafter, all were sealed with the seal of RK vide seizure memo Ex PW1/A bearing his signature at point B after weighing the same from the atta chakki shop, plastic katta at S. No 1 weighed 14.3 kg, plastic katta at S No. 2 weighed 9.9 kg, plastic katta at S No. 3 weighed 8.2 kg, plastic katta at S No. 4 weighed 2.2 kg, in total 34.6 kg. He prepared the rukka Ex PW1/B bearing his signature at point A. After that he handed over seal to Ct Ajay and gave Ct Ajay the rukka for registration of FIR. Thereafter, Ct Ajay went to PS and got the FIR registered, after sometime, he came back at the spot and handed over copy FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 4/13 of FIR and original rukka to him. He arrested the accused vide arrest memo Ex PW1/C bearing his signature at point B. He recorded disclosure statement of the accused vide memo Ex PW1/D, bearing his signature at point B. He released the accused on pabandinama Ex 2/A bearing his signature at point A and B. He prepared site plan Ex PW1/E bearing his signature at point B. He recorded statement of witnesses under Section 161 CRPC. He can identify the accused. (Accused is present in Court and correctly identified by the witness.) He can identify the case property if shown to him. (At this stage photographs placed in judicial file shown to the witness. The same is correctly identified by the witness. The same is Ex PW1/F (Colly). He got the case property destroyed with the permission of Court of Sh. Ashish Meena Ld MM, Dwarka Court vide order dated 11.11.2020 Ex PW2/B. iv. In his cross examination he stated that the shop from where the 4 plastic katta were brought is about 500 meters away from the alleged shop. Ld Counsel for the asked to question: Whether you can show on site map at which point aata chakki shop was? (At this stage, site map placed on record is shown to the witness.) He cannot tell at what point aata chakki shop was. He did not record the statement of the owner of the aata chakki shop. He reached the spot along with Ct Ajay at 8.30 Pm. He along with Ct Ajay left the spot at about 12.15 pm. Public persons were present at the spot. No notice was served to any of the public persons in his presence.
There were residential houses and shops near the alleged shop. Ct Ajay left the spot at about 11 PM for registration of FIR and came back to the spot at about 11 PM. The case property was taken to PS in e-rickshaw. He do not remember the number of e-rickshaw and also cannot tell the name of the person who was driver of the e-rickshaw. The cloth with which the plastic katta was sealed was with him as he keep separate cloth for emergency FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 5/13 purposes. No seal handing over memo was prepared at the time of handing the seal to Ct Ajay. He denied the suggestion that he is deposing falsely at the instance of the IO or the case property was not recovered from the custody of the accused or the same was planted on him.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w Section 281 CrPC was recorded on 06.01.2024 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that nothing was recovered from his possession and that he was falsely implicated in this present case. That he is innocent and all the witnesses deposing against him are interested witnesses. The accused chose not to lead any evidence in his defence.
7. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of crackers without any license. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
8. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 6/13 burden rests always upon the prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analyzed.
11. In order to establish charge under Section 9B of the Explosives 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. The prosecution has failed to establish the same for the reasons states below. I. Non-joining of Public Witnesses
12. One of the arguments of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
13. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW 1 and PW 2 reveals that they have categorically stated that there were residential houses and public persons were passing by. They had also asked public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non- joining of public witness throws doubt over the fairness of the investigation by FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 7/13 police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case.
14. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola (Emphasis supplied).
15. In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case. II. No seal Handing over memo.
16. PW 2 in his cross examination stated that no seal handing over memo was prepared at the time of handing over the seal of Ct Ajay. Thus, in the instant case no handing over memo of the seal was prepared which can suggest that case property remained intact and there is no tampering with the same.
17. As per evidence available on record, the seal after use was not given to any independent public person. Moreover, there is no seal handing over memo on record. Further, there is nothing on record to prove whether the said seal was FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 8/13 ever deposited in the Malkhana of Police Station or not. In such case, tampering with case property can also not be ruled out. As a result, the benefit of doubt has to be given to the accused. Reliance is placed upon the decision in Safiullah v. State, (1993) 49 DLT 193, where the Hon'ble High Court of Delhi 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. ...... Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
III. Doubts in preparation of Seizure Memo.
18. There exists yet another discrepancy in the case of the prosecution. PW 1 in his testimony stated that IO prepared the seizure memo of the case property which is Ex PW1/A. After that IO prepared the rukka and got the FIR registered through him. PW 2 IO also stated the same as above qua the preparation of seizure memo and rukka. Thus, it is clear from the testimony of PW 1 and PW 2 that the seizure memo of the case property was prepared before the rukka was handed over by PW2 to PW1 for registration of the FIR. The FIR was thus, admittedly registered after the preparation of the seizure memo, however, surprisingly they bear the FIR number and it is thus worth wondering that if the FIR was never registered at the time when the seizure memo was prepared, how the FIR number came to be noted in the seizure memo since the number of the FIR could have come to knowledge of PW 2 only after a copy of the FIR was brought to the spot by PW 1. Thus, the number of FIR in no circumstances could have been mentioned by the IO on the seizure memo which came into existence before registration of the FIR.
FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 9/13
19. In this context, Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
20. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex. PW5/A) alleged to have been FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 10/13 served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
21. In the light of the abovesaid judgments, the mentioning of the number of FIR in the seizure memo creates serious doubt on the prosecution version and alleged recovery of crackers and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution the benefit of which has to be given to the accused.
IV. No departure or the arrival entry of PW 1 & PW 2.
22. The present case rests entirely on the alleged recovery of case property, i.e. crackers, from the possession of the accused at the relevant time by a police officials PW 1 and PW 2 as it is the case of the prosecution that on 06.11.2020 at about 8.30 PM, PW 1 and PW 2 were on patrolling duty in beat No 8. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 11/13 arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2) Crimes 29 Delhi High Court wherein it has been observed:
"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."
23. There is yet another discrepancy in the case of the prosecution. It is observed that there is nothing on record to connect the accused with shop no. E 14, Gali No 7, Raja Puri Road, Delhi from which the crackers were allegedly recovered. It has not been proved whether the accused was holding the premises as a tenant or owner or otherwise. No photographs of the spot has been taken to suggest if there was any advertisement board over there or not which could suggest that accused was allegedly storing and selling the crackers.
24. Thus, in the opinion of this court, there is no cogent evidence on record to connect the accused persons with the commission of the offences and to prove their guilt beyond reasonable doubt.
FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 12/13
25. In view of the above discussion, the prosecution has failed to prove the case beyond reasonable doubt against the accused persons. The accused namely Rakesh Bansal is, therefore, hereby acquitted of the offence charged, i.e., u/s 9(B) Explosives Act.
Digitally signedAnnounced in the open court on 01.03.2024. HARSHAL by HARSHAL NEGI NEGI Date: 2024.03.01 16:02:07 +0530 (Harshal Negi) MM-02/Dwarka Court, New Delhi, 01.03.2024 It is certified that the present judgment runs into 13 pages and Digitally signed by each page bears my signature. HARSHAL HARSHAL NEGI NEGI Date: 2024.03.01 16:02:13 +0530 (Harshal Negi) MM-02/Dwarka Court, New Delhi, 01.03.2024 FIR No.: 0832/2020 State versus Rakesh Bansal Page no. 13/13