Delhi District Court
State vs . Tanvir Alam on 11 November, 2022
IN THE COURT OF SH. AAKASH SHARMA, MM-08, WEST
DISTRICT, ROOM NO. 30, TIS HAZARI COURTS, DELHI.
FIR No. : 124/2018
U/s : 25/54/59 Arms Act
P.S. : Mianwali Nagar
State Vs. Tanvir Alam
CNR No. DLWT-02- 008225-2018
JUDGMENT:
a) Sl. No. of the case : 4236/2018
b) Name & address of the : Ct. Satpal, No. 2216/OD,
complainant. PIS 28082114,
PS Mianwali Nagar, Delhi.
c) Name & address of : Tanvir Alam S/o Sh. Baddrudin,
accused R/o D-4/88, Sultanpuri, Delhi.
d) Date of Commission of : 17.04.2018
offence
e) Offence complained off : u/S 25(1B)(b) Arms Act
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
h) Date of such order : 11.11.2022
j) State Represented by : Ms. Tanuja Malik, Ld. Substitute APP
k) Accused Represented by : Sh. Sandeep Nehra, Ld. Counsel
Date of Institution : 21.06.2018
Final arguments heard on : 11.11.2022
Judgment Pronounced on : 11.11.2022
STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 1/18
BRIEF STATEMENT OF REASONS FOR DECISION: -
1. Briefly stated, case of the prosecution is that on 17.04.2018 at about 03:00 PM at Meera Bagh Bus Stand, Paschim Vihar, Delhi within the jurisdiction of PS Mianwali Nagar, accused was found in possession of one buttondar knife from the right side pocket of the wearing pants of the accused in contravention of notification issued by the Delhi Administration.
2. After investigation, challan for offence u/S 25(1B)(b) Arms Act was filed. Compliance of Section 207 Cr.P.C was done.
3. Charge for committing the offence punishable under Section 25 Arms Act was framed against accused on 29.08.2018. He pleaded not guilty and claimed trial.
4. To substantiate its case, the prosecution examined three witnesses i.e. PW HC Satpal Singh, PW HC Anuj Vats and PW ASI STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 2/18 Umesh Kumar.
5. PW-1 HC Satpal Singh, No. 2216/OD, PS Nangli, Delhi is the witness/complainant in the present case, who deposed that on 17.04.2018, he was posted at PS Mianwali Nagar. He alongwith HC Anuj, Ct. Devender, Ct. Naveen and Ct. Rakesh were investigating the case FIR No. 122/18 PS Mianwali Nagar and were present at Ganda Nala at about 03:00 PM. HC Anuj got information from a secret informer that 3-4 persons who were indulged in mobile theft would come at Meera Bagh Bus Stand. Immediately, they went to Meera Bagh Bus Stand. They took positions. Four persons deboarded from the bus and on the signal of the secret informer, they apprehended those four persons. The person whom he got revealed his name as Tanvir (who was present in the court that day and correctly identified by the witness). Other three accused persons were apprehended by remaining police officials. He made cursory search of accused Tanvir on which one buttondar knife was recovered from the right pocket of his wearing pants. He informed about the recovery of buttondar knife to HC Anuj. Then HC Anuj passed over the information of the apprehension of the accused STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 3/18 persons and case property to PS Mianwali Nagar by phone. After some time, IO HC Umesh reached the spot and he handed over him accused Tanvir alongwith recovered buttondar knife to him. Similarly other police officials produced remaining accused persons before IO. IO recorded his statement. Same was Ex.PW1/A. IO prepared the sketch of the buttondar knife by placing it on a white paper vide memo Ex.PW1/B. IO seized the aforesaid knife vide seizure memo Ex.PW1/C and converted it into pullanda and sealed the same with the seal of UK. Seal after use was handed over to him. Thereafter, IO prepared the rukka and handed over the same to him which he took to PS, got the case registered and came back with the copy of FIR and original rukka and handed over the same to IO HC Umesh Kumar. IO arrested the accused Tanvir Alam and conducted his personal search vide memos Ex.PW1/D and Ex.PW1/E. IO also arrested the other accused persons. IO recorded the disclosure statement of accused Tanvir Alam vide Ex.PW1/G. Objected to by Ld. Counsel for accused Tanvir Alam). Thereafter, the police officials alongwith the abovesaid accused persons and case property went to PS. Case property was deposited in malkhana. Accused persons were put behind bars after their STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 4/18 medical examination. IO recorded his supplementary statement. He could identify the case property, if produced before him.
At that stage, MHC(M) had produced one white colour pullanda and the case details of the present case were written on the same and pullanda was properly sealed with the seal of UK. The seals were broken with the permission of the Court and one buttondar knife was taken out and shown to the witness. On seeing the buttondar knife, witness stated that was the same buttondar knife, which was recovered from the accused and the same was then Ex.P1.
In his cross-examination, witness complainant deposed that on that day, he left PS at about 01:30 PM by his bike alone, he did not remember the DD number of departure entry. Remaining police officials followed him on their respective vehicles. He did not remember the registration number or make of those vehicles. Accused Tanvir Alam was apprehended at a place which was 800 meters away from the PS. All the aforesaid police officials including him were present at the place where accused persons were apprehended. He took the search of the accused Tanvir Alam initially. He did not offer his search before searching accused Tanvir STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 5/18 Alam. He left the spot with rukka at about 03:45 PM on his motorcycle for PS. The accused Tanvir Alam was in the custody of HC Umesh during that period and he returned to spot at around 05:50 PM. He did not inform to SHO PS Mianwali Nagar with regard to recovery of knife from accused Tanvir Alam. Vol. He directly went to DO. IO prepared site plan in his presence. He did not remember whether he or other police officials signed the same. His statement was not recorded on spot. His statement was recorded in PS by IO HC Umesh on same day at about 09:00-10:00 PM. It was correct that each knife has specific identification mark. It was correct that no company's name or identification mark was there on the entire knife. He could say if the knife was Ex.P1 were easily available in the market. It was wrong to suggest that he never visited the spot or that the accused was falsely implicated in the present case or that recovery was not effected from the possession of the accused or that all the written work was done while sitting in the PS or that the case property was planted upon the accused. It was wrong to suggest that he was deposing falsely on the instance of IO.
6. PW-2 HC Anuj Vats, No. 1217, Traffic, Nangloi Circle, STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 6/18 Delhi, is the witness in the present case, who deposed that o n 17.04.2018, he was posted at PS Mianwali Nagar as HC. He along- with Ct. Satpal, Ct. Devender, Ct. Naveen and Ct. Rakesh were investigating the case FIR NO. 122/18 PS Mianwali Nagar and were present at Ganda Nala at about 03.00 pm. He got information from a secret informer that 3-4 persons, who were indulged in mobile theft would come at Meera Bagh Bus Stand. He shared that information with the other police staff. They went to Meera Bagh Bus Stand. They all took positions. Four persons deboarded from the bus which was already standing at the Bus Stand and on the signal of the secret informer, they apprehended those four persons. The person whom Ct. Satpal apprehended revealed his name as Tanvir (who was present in the court today and correctly identified by the witness). Other three accused persons were apprehended by remaining police officials. Ct. Satpal made cursory search of accused Tanvir on which one buttondar knife was recovered from the right pocket of his wearing pant. Ct. Satpal informed about the recovery of buttondar knife to him. Then he passed over the information of the apprehension of the accused persons and case property to PS Mianwali by phone. After some STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 7/18 time, IO HC Umesh reached the spot and Ct. Satpal handed over him accused Tanvir alongwith recovered buttondar knife to him. Similarly other police officials produced remaining accused persons before IO. IO recorded the statement of Ct. Satpal. Same was already Ex.PW1/A. IO prepared the sketch of the buttondar knife by placing it on a white paper vide memo already Ex.PW1/B. IO seized the aforesaid knife vide seizure memo already Ex.PW1/C and converted it into pullanda and sealed the same with the seal of UK. Seal after use was handed over to Ct. Satpal. Thereafter, IO prepared the rukka and handed over the same to Ct. Satpal which he took to PS, got the case registered and came back with copy of FIR and original rukka and handed over the same to IO HC Umesh Kumar. IO arrested the accused Tanvir Alam and conducted his personal search vide memos already Ex.PW1/D and Ex.PW1/E. IO also arrested the other accused persons. IO recorded the disclosure statement of accused Tanvir Alam vide already Ex.PW1/F. Thereafter, the police officials alongwith the above said accused persons and case property went to PS and he again started investigation in his aforesaid FIR. IO recorded his statement. He could identify the case property, if produced before him. Case STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 8/18 property was already Ex.P-1.
In his Cross-examination, witness deposed that he did not know when the investigation of above said FIR was assigned to him. He departed from the PS vide DD entry but he did not remember it then. Investigation of that case was assigned to him by the SHO concerned. He had gone to the aforesaid spot in his Santro Car bearing registration No. HR 26AE 7792. It was his personal car. There was no entry of the car anywhere. He received the secret information about 2 km away from the police station. The public persons were going through the place where they had received secret information. he requested 3-4 persons to join the proceedings but they refused to join and went away assigning their personal reasons. He did not note down the reasons told by them anywhere nor jotted down their names and particulars. He did not carry the search of Satpal prior to carrying search of the accused and at that time also public persons were going through that place. He again had requested public person to join the proceedings but they did not agree. They were the persons on foot. He did not note down their names and particulars. He remained at the spot for about 03.00-03.30 hours. He informed about the apprehension of STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 9/18 the accused to PS vide DD No. 58-B. That day, he reached police station at about 07.00 pm. It was wrong to suggest that he was not carrying any investigation in some other case or that nothing was recovered from the possession of the accused or that he was deposing falsely.
7. PW ASI Umesh Kumar, No. 1116/OD, PS Ranhola, Delhi, on 17.04.2018 he received information vide DD no. 29A, he went to the spot i.e. Meera Bagh bus stand where he met Ct. Satpal. He produced accused Tanvir Alam along with recovered closed Buttondar knife lohanuma dhatu to him. Thereafter he prepared the sketch of the knife on a plan paper same was already exhibited as Ex. PW1/B. The total length of the knife was 23.5 cm and the length of the sword is 10.5 cm and the butt was 13 cm long and breadth was 3 cm. Thereafter, he prepared the pulanda and sealed it with the seal of UK and seized the knife vide seizure memo PW1/C. Thereafter, he recorded the statement of Ct.S atpal Ex.PW1/A endorsed the same at point B. He prepared the Tehrir Ex.PW3/A and send Ct. Satpal to PS for STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 10/18 registration of FIR. Ct. Satpal returned after some time and handed over him the copy of FIR and asal tehrir. Meanwhile, he prepared the site plan at instance of Ct. Anuj, Ex. PW3/B. Thereafter, he interrogated the accused and recorded his disclosure statement vide already Ex.PW1/F. Thereafter, he arrested the accused and personally searched him vide memos Ex. PW1/D and PW1/E respectively. Accused was present in the court and correctly identified by the witness. Thereafter they all returned to the PS and deposited the case property in the PS Malkhana and accused, after getting conducted his medical examination was sent to lockup of PS PV East. Thereafter, he recorded the statement of witnesses and prepared the chargesheet. On next day accused was got sent to JC. He could identify the case property if shown to him. The case property was already exhibited as Ex.P1.
In his cross-examination, witness/IO deposed that he reached the spot at 3.15 PM on my private motorcycle bearing reg. no. HR10R7093 made of Bajaj Discover. There were public persons but they did not join the investigation despite the STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 11/18 request made to them. No written notice was served upon them. All the writing work was done while sitting in the bus stand itself. The measuring scale was of plastic material. Ct. Satpal went on his motorcycle to PS for registration of FIR at about 4.30 PM and returned back in 20-30 minutes. He prepared the site plan after Ct. Satpal went to PS for registration of FIR. They finally left the spot after 6PM. Accused was taken directly to PS on his motorcycle. Ct. Satpal also accompanied them on his motorcycle to prevent the accused from fleeing. No handing/taking over memo of seal was prepared. He did not remember the exact time when the case property was deposited in PS Malkhana. It was wrong to suggest that nothing was recovered from accused person. It was wrong to suggest that all writing work was done by him while sitting in the PS. It was wrong to suggest that he was deposing falsely.
8. Accused admitted u/S 294 Cr.P.C. FIR 124/18, Certificate 65-B, DD No. 29-A dated 17.04.2018, Statement of Ct. Devender, Statement of Ct. Rakesh and Statement of Ct. Naveen STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 12/18 vide Ex.A1-Ex.A6 respectively.
9. Statement Under Section 313 Cr.P.C. was recorded of the accused and all the incriminating evidence was put to him and the accused stated that the witnesses have deposed falsely against him and that they are interested witnesses. That he has been falsely implicated and the case property has been planted upon him. Accused did not wish to lead defence evidence.
10. I have heard Ld. APP for the State, Ld. Counsel for the accused and have carefully gone through the record.
11. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 13/18 prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
12. To infer the innocence of accused, it is pertinent to note that PW1 stated that secret informer had informed him that 3-4 persons, who were indulged in mobile theft would come at Meera Bagh Bus Stand and at that time on receipt of secret information, they went to Meera Bagh Bus Stand and took positions. Four persons deboarded from the bus and on the signal of the secret informer, they apprehended those four persons. The person whom PW HC Satpal got revealed his name as Tanvir, who was present in the court and correctly identified by the witness. Thereafter, PW1 promptly conducted cursory search of the accused after he was pointed out by the secret informer and one buttondar knife was recovered from the right side pocket of the wearing pants of the accused. Thereafter, PW informed about the recovery of buttondar knife to HC Anuj. Then HC Anuj passed over the information of the apprehension of the accused persons and case property to PS Mianwali Nagar by phone. After some time, PW/IO HC Umesh reached the spot and PW/HC Satpal handed over him accused STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 14/18 Tanvir Alam alongwith recovered buttondar knife. It is seen that no independent public witness has been cited qua the recovery by the investigating agency despite the spot being a such a crowded place i.e. bus stand. Whereas as per, Section 165 (4) Cr.P.C the provision of Section 100 Cr.P.C. is applicable whenever the police officer conducts personal search and in the present case the police had prior secret information regarding the accused. In "Roop Chand v. State of Haryana" reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of "Pradeep Narayana V. State of Maharashtra" AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. Similarly it was held in the case of "Kuldeep Singh V. State of Haryana" 2004(4) RCR 103 and "Passi @ Prakash V. State of Haryana" 2001(1) RCR 435, that whenever any recovery in connection with the place of the commission of offence is made, public persons must be made witness.
STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 15/18
13. From the overall testimony of the witnesses, it is clear that neither the PW1 HC Satpal, who conducted the search at the instance of secret informer joined any public witness on receipt of secret information nor the IO/PW3 HC Umesh joined any public witness at the time of recovery/arrest or while completing the formalities despite availability of public persons on such a busy area. PW-3 could have easily joined an independent witness at the time and place, where the accused was apprehended and when the seizure formalities were being completed, since public persons were admittedly present as deposed by the witnesses. Even then, PW1 and PW3 failed to join any public witness. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the investigation agency to join independent witnesses.
14. The Section 100(4) CrPC provides that "Before making a search, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 16/18 willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do".
15. In the case at hand, the above stated provision has not been complied with.
16. Perusal of the testimony of witnesses reflects that the seizure memo of knife Ex.PW1/C, was prepared before the registration of FIR. At the time only DD entry No. 29-B was in the knowledge of the IO, then how could IO have written the FIR no. upon the seizure memo of knife i.e. Ex.PW1/C. Whereas, there is no FIR number entry on the sketch memo of knife Ex.PW1/B. When document seizure memo was prepared before registration of FIR and it contains the FIR number, an inference has to be drawn that either FIR was recorded prior in time or the documents were prepared later on and in such cases, benefit of doubt is to be given to the accused.
17. In the case at hand, all the lapses in investigation cast STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 17/18 a doubt on the very recovery of the buttondar knife from the possession of the accused. This court is of the considered view that prosecution has not been able to prove the guilt of the accused and has failed to prove its case beyond reasonable doubt. Accordingly, accused Tanvir Alam is acquitted of the offence under Section 25 Arms Act.
Dictated & Announced in Open Court (Aakash Sharma) On the 11th day of November, 2022 MM-08(West)/Delhi 11.11.2022 STATE Vs. TANVIR ALAM FIR NO. 124/2018 Page No. 18/18