Delhi District Court
State vs . Jai Prakash on 22 August, 2012
IN THE COURT OF SHRI VISHAL GOGNE
METROPOLITAN MAGISTRATE03(EAST)
KARKARDOOMA COURTS, DELHI
FIR No. 553/05
PS Pandav Nagar
U/s 9B Explosive Act & u/s
113 Rule 1953 Explosive
Act & 286/336 IPC.
State Vs. Jai Prakash
JUDGMENT:
A Sl. No. of the case 02402R0158612006
B Date of institution 8.3.06
C Date of commission of 28.10.05
offence
D Name of the complainant SI Noor Mohd.
E Name of the accused & Jai Prakash
his parentage and address S/o Shri Ram Dulare
R/o D31, Acharya Niketan
PS Pandav Nagar, Delhi.
F Offence complained of U/s 9B Explosive Act & u/s 113 Rule 1953
Explosive Act & 286/336 IPC.
G Plea of the accused Pleaded not guilty
H Order Reserved on 13.08.2012
I Final order Acquitted
FIR No. 553/05, PS Pandv Nagar Page No. 1 of 12
J Date of such order 22.08.2012
Brief reasons for the decision of the case
1. The trial relates to section 9B of the Explosives Act, 1884 read with Rule 113 of the Explosives Rules, 1983. The accused pleaded not guilty.
2. The undisputed facts may be recorded first.
3. Accused Jai Prakash was the holder of the license(Ex. PW4/A) for possession of fire works to the extent of 100 Kg. and Chinese crackers to the extent of 1000 Kg. Constable Yashpal Singh and HC Rajender Singh alongwith SI Noor Mohd.(PW1 to PW3 respectively) seized certain quantity of fire works from the shop of the accused situated at D31, Acharya Niketan, Mayur Vihar, PhaseI on 28.10.05. The identity of the seized fire crackers was also not disputed by the accused.
4. The contentious issue is as follows:
The prosecution has alleged that crackers exceeding the licensed limit of 1100 Kg. by 348 Kg. were found by the above policemen at the shop of the accused on the above date at about 03:00 p.m. Reliance has been placed on the similar deposition of PW1 to PW3 FIR No. 553/05, PS Pandv Nagar Page No. 2 of 12 whereby the seizure memo was proved as Ex. PW1/A, the arrest memo and personal search memo being Ex. PW1/B & Ex. PW1/C respectively.
5. The accused has instead represented the allegations to be a case of false implication by PW1 & PW2 in consequence of the insistence by the accused for making of payment for the fire crackers purchased by these policemen from his shop. It was the specific defence of the accused in his statement under section 313 Cr.P.C. that the policemen had infact taken away the fire crackers kept outside the shop belonging to customers and had not weighed the crackers lying inside the shop.
6. Four specific arguments and counter arguments of the accused and the State may be recorded and decided hereon. I The defence pointed to rule 179 of The Explosive Rules, 1983 which permits search and seizure of any place where explosives are possessed by a police officer of a rank not below that of a Sub Inspector of Police. It was argued that the search and seizure by PW1 & PW2, being constables at the time of the incident, was vitiated as the mandate of rule 179 had not been obeyed. The Ld. Counsel for the accused pointed to the deposition of PW1 to point out that the articles FIR No. 553/05, PS Pandv Nagar Page No. 3 of 12 seized had been weighed before the arrival of PW3(Sub Inspector Noor Mohammad). This was referred to as a violation of rule 179.
In response, the Ld. APP submitted that PW2 and PW3 had both asserted that the fire crackers were weighed in the presence of PW3. It was thus argued that the entire search and seizure was within the supervision of PW3.
The court finds rule 179 to be both explicit and mandatory. It is apparent that not only examination of a place but also entry and inspection into the same for search of explosives may be carried out by a police officer of a rank not below that of a Sub Inspector. It is clearly the mandate of this Rule that the very inception of the investigation qua a suspect should be at the hands of such an officer. The rule does not contemplate the joining of a Sub Inspector midway through the entry, inspection or examination of any place where explosives may be possessed. Several pointers have emerged during evidence for the court to conclude that the shop of the accused was entered, inspected and examined by officials below the rank of a Sub Inspector viz PW1 & PW2.
Firstly, PW1 and PW2 both stated during their FIR No. 553/05, PS Pandv Nagar Page No. 4 of 12 examinationinchief itself that upon reaching the shop of the accused and noticing crackers in huge quantity, they asked the accused to show his license. The court finds this act to have been the inception of the investigation and within the meaning of entry, inspection and examination as contemplated by Rule 179. These police officials were below the rank of a Sub Inspector and not permitted to formulate a view regarding the possibility of excess fire crackers or to demand the license from the accused. It is notable that PW1 & PW2 had already assessed the license and fire crackers before arrival of PW2.
Secondly, and more crucially, PW1 revealed that the crackers were weighed before the arrival of SI Noor Mohd. and that the same were found to be in excess of the licensed quantity of 1100 Kg. by 348 Kg. Weighing is certainly the most determinative component of the investigation pertaining to section 9B of the Explosives Act, 1884. This again was a blatant violation of the bar imposed by Rule 179. Officials of a rank lower than was permitted performed the task not permissible for them.
The court finds the entire search and purported seizure reflected in Seizure Memo Ex. PW1/A to have been vitiated by FIR No. 553/05, PS Pandv Nagar Page No. 5 of 12 the violation of Rule 179. The accused is entitled to acquittal on this ground alone.
II It was next contended by the counsel for the accused that PW1 had contradicted PW2 & PW3 with respect to the source of the weighing machine. Whereas PW1 claimed that it was available with him at the time of the seizure, the later insisted that PW2 had brought it from a nearby shop. It was contended that this contradiction suggested the falsehood of the allegations.
The Ld. Prosecutor, however, submitted that notwithstanding the varied account rendered by PW1, PW2 & PW3 had confirmed that the machine was brought by PW2.
It would be appropriate for the court to record in the context of submission by the Ld. Prosecutor that evidence is to be weighed and not counted. PW2 & PW3 cannot trump over PW1 only by numerical superiority. The content of the respective depositions is what is material. Here was one of the two policemen(PW1), who reached the shop of the accused, stating in clear terms that he was carrying a weighing scale at the time of the proceedings with the other witnesses viz PW2 & PW3 claiming that the scale had been brought by PW2. These are FIR No. 553/05, PS Pandv Nagar Page No. 6 of 12 mutually irreconcilable versions. There is no meeting point. The scale was either brought by PW1 or by PW2. The court considers this divergence to be a material contradiction and not a minor variation. After all, it was the stated defence of the accused that fire crackers belonging to the customers had been lifted. One of the customers i.e. DW1 corroborated this defence.
In this scenario, the inconsistency between the police witnesses regarding the weighing machine constitutes a loss of credibility for the prosecution version as a whole. The version of recovery falters in the process.
III It was submitted by the defence in the context of the actual weighing of the fire crackers that PW1 had again contradicted PW2 & PW3 by deposing that the same had been weighed before the arrival of PW3 whereas PW2 & PW3 stated the exercise to have taken place in the presence of PW3.
The State rebutted this submission arguing that PW2 & PW3 corroborated each other in this respect. It was submitted by the prosecutor that the seizure memo Ex. PW1/A was adequate proof of the weighing and seizure having taken place in the presence of all three FIR No. 553/05, PS Pandv Nagar Page No. 7 of 12 deposing policemen.
The court has already placed reliance on the deposition of PW1 in the context of the finding qua Rule 179 to conclude that the accused is entitled to acquittal for violation of the said Rule. However, the deposition of PW1 does also weaken the case of the prosecution if seen in contrast with the statements of PW2 & PW3.
PW1 stated during his examinationinchief(and not during his crossexamination) that:
"We asked the accused to show the license and he produced the license which was capacity of 1100 Kg. but accused had kept more than 1100 Kg. crackers in his shop. Crackers were checked in weight and found 348 Kg. extra. We called SI Noor Mohd. who was also patrolling in the area."
The court is unable to find merit in the submission of the Ld. APP interalia that the above statement of PW1 is offset by the account of PW2 & PW3 who insisted that the fire crackers had been weighed in the presence of PW3. At the outset, it is to be observed that the above excerpt from the statement of PW1 is completely unambiguous regarding the chain of events. PW1 was assertive and explicit in stating FIR No. 553/05, PS Pandv Nagar Page No. 8 of 12 that he alongwith PW2 first demanded the license of the accused, then inspected the same and finally weighed the crackers. The excess quantity i.e. 348 Kg. was resultantly determined by PW1 & PW2. It was only after this exercise had been completed that PW3 was called to the spot. Considering the meticulous particulars provided by PW1, the court is not inclined to disbelieve him and prefer the account given by PW2 & PW3. Even if the later were believed, contradiction between their statements and the deposition of PW1 would render the prosecution allegations untenable and not proved on the standard of proof beyond reasonable doubt. If the prosecution witnesses were not in harmony on a crucial aspect viz the weighing of the fire crackers, the court is constrained to conclude that either PW1 or PW2 & PW3 delivered a less than truthful account. No finding regarding the possession of excess quantity of fire crackers can be rendered against the accused on such testimony. IV The Ld. Defence Counsel next agitated the claim of the accused interalia that the policemen had lifted the articles of innocent customers. In support, the counsel pointed out that suggestions to this effect had been made to PW1 to PW3. The deposition of one of these customers viz DW1(Vinod Kumar Gupta) was offered in defence by FIR No. 553/05, PS Pandv Nagar Page No. 9 of 12 the accused. The Defence counsel submitted that this witness had deposed regarding PW1 & PW2 having taken away his fire crackers after the accused demanded payment from them regarding their own purchases.
The prosecutor instead pointed out that the witnesses for the State had denied these suggestions. It was argued that DW1, admittedly being an acquaintance of the accused, was a procured witness who had delivered a deposition suitable to the accused.
At one level, the above arguments are a case of the word of one man(DW1) against three(PW1 to PW3). The prosecutor was indeed accurate in submitting that the prosecution witnesses had duly denied the suggestion of having lifted the fire crackers of customers and passing them off as the property of the accused. Yet, neither is a defence proved by suggestions nor refuted by denial of suggestions. It is the context and content of the statements on record which enables the court to determine the veracity of a version, presently the defence centered on DW1.
The court would here record that certain surrounding circumstances tilt the balance in favour of the argument FIR No. 553/05, PS Pandv Nagar Page No. 10 of 12 raised by the defence. For one, PW1 & PW2 did admit that some crackers were lying outside the shop and that some customers were indeed present inside and outside the shop. It can at least be concluded that there existed a possibility of the fire crackers of some customers lying outside the shop. Secondly, to a specific question by the defence counsel, PW2 replied that "I cannot say if some crackers/fire works were outside the shop belonging to the customers." This was a pertinent reply. It indicates that the policemen themselves were not sure of the ownership of at least some of the fire crackers present outside the shop. If the policemen who seized the excess quantity could not be certain that all articles belonged to the accused, the purported seizure of the excess quantity of 348 Kg. gets either diluted or vitiated.
It is in this context that the court is inclined to believe the deposition of DW1. DW1 was forthright in deposing that the accused demanded payment for fire crackers purchased by PW1 & PW2 but they refused and instead picked up two packets of fire crackers belonging to DW1 alongwith fire crackers of other customers and left the shop. Even during crossexamination by the Ld. APP, DW1 remained consistent in the above deposition.
FIR No. 553/05, PS Pandv Nagar Page No. 11 of 12
It is the position of the law that the accused does not have to prove his defence beyond doubt. A probable defence is sufficient for dislodging the prosecution version. The court finds the present accused to have led a cogent, believable and substantiated defence.
7. In conclusion, the charge under section 9B read with rule 113 fails firstly due to the violation of Rule 179 and secondly due to the infirmities in the prosecution evidence on merits. The contradictions between the deposition of PW1 on one hand and PW2 & PW3 on the other, coupled with the believable testimony of DW1 render it "not proved" that an excess quantity of fire crackers beyond the license of the accused was found in his possession.
8. The accused is acquitted.
9. File be consigned to the Record Room.
Announced in open Court.
Delhi Dated the 22.08.2012 This Judgment contains 12 pages and each paper is signed by me.
VISHAL GOGNE MM(East)03/KKD Courts/Delhi 22.08.2012 FIR No. 553/05, PS Pandv Nagar Page No. 12 of 12