Delhi District Court
State vs . : Braham Singh on 29 July, 2011
IN THE COURT OF SH. SUDHANSHU KAUSHIK, METROPOLITAN
MAGISTRATE02, SOUTHEAST DISTRICT, SAKET COURTS, NEW
DELHI
State Vs. : Braham Singh
DD No. : 40B
U/s : 28/112 of The Delhi
Police Act
PS : Okhla Industrial Area
J U D G E M E N T
A. Sl. no. of the case 56/2/07
B. Offence complained of
or proved 28/112 of The Delhi
Police Act
C. Date of Offence 25.06.2007
D. Name of the complainant SI Mahender Singh
NoD/1787, PS
Okhla Industrial Area
E. Name of the accused Braham Singh
S/o Badle Ram
R/o H.N37, Village
Tehkhand, New Delhi
F. Plea of the accused Pleaded not guilty.
G. Final order Convicted
H. Date of Order 29.07.2011
BRIEF FACTS:
1. The case of the prosecution is that the accused Braham Singh is running an eating house without obtaining licence from the competent authority. On 25.06.2007, SI Mahender Singh and Constable Devi Saran (both posted at Okhla Industrial Area) found out during the course of DD no. 40B 1/7 their patrolling duty that the accused was running an eating house at B202, Okhla Industrial Area PhI, New Delhi. The accused was challaned under section 28 read with section 112 of The Delhi Police Act, 1978 and a kalandara was forwarded to the court.
2. On the basis of the said kalandara, the Ld Predecessor took cognizance of the offence. The copies of the kalandara were supplied to the accused and on the basis of the same, a notice under section 28/112 of The Delhi Police Act, 1978 was framed.
WITNESSES EXAMINED
3. The prosecution examined two witnesses.
PW1 SI Mahender Singh and PW2 Constable Devi Saran. They both stated that during the course of their patrolling duty, they found that the accused Braham Singh was running an eating house without obtaining the requisite licence from the competent authority.
STATEMENT OF THE ACCUSED
4. The accused in his statement recorded under Section 313 Cr PC read with section 281 Cr PC pleaded innocence and claimed that he has been falsely implicated. He admitted that he is selling food but stated that he is not running an eating house. He stated that he is selling food on a 'rehri' and did not examine any witness in defence.
5. I have heard the Ld. APP for the state and Ld. Defence counsel and have carefully gone through the entire record.
ARGUMENTS DD no. 40B 2/7
6. Ld. APP has contended that the prosecution has proved its case beyond reasonable doubt. He has argued that PW1 and PW2 have narrated similar facts and there are only minor contradictions in their testimony which does not corrode the evidentially value of their statements.
7. On the other hand, Ld. Defence counsel has assailed the case of the prosecution. The counsel has argued that there are material contradiction in the testimony of PW1 and PW2 and their testimony is not reliable. He has contended that no public witness was joined in the investigation and no justification has come on record for the said failure. On the force of the said arguments, the counsel has submitted that the accused should be acquitted.
8. I have perused the entire record in the light of the rival contentions.
BRIEF REASONS
9. The evidence on record basically constitute the testimony of PW1 and PW2. They both are police officials. SI Mahender Singh (PW1) has deposed that on 25.06.2007, at around 12.10 PM, while he was on patrolling duty, he found that the accused Braham Singh was running an eating house (rehri) at the premises bearing number B202, Okhla Industrial Area, PhI, New Delhi. He has mentioned that the accused was running an eating house and he failed to produce any licence for running the said eating house. Constable Devi Saran (PW2) has also deposed on similar lines. He has mentioned that he was accompanying SI Mahender Singh on the patrolling duty and found that accused was running an eating house without obtaining licence from the competent DD no. 40B 3/7 authority.
10. Defence counsel has attacked the testimony of PW1 and PW2 on the ground that it contains material contradictions. I have gone through the statement of both the witnesses. I do not find any material contradictions in their statements. Both of them have deposed on same lines. They have categorically mentioned that the accused was running an eating house without obtaining the requisite licence.
11. The facts are not in dispute. The accused has admitted in his statement recorded under section 313 Cr PC that he is selling food on a 'rehri' in front of B202, Okhla Industrial Area. PW1 and PW2 have also mentioned that the accused was found selling food on a 'rehri'. I take liberty to quote the relevant lines from their testimony. SI Mahender Singh (PW1) has stated, "at about 12.10 PM when we reached at B202, Okhla PhaseI we saw that the accused Braham Singh who is present in the court today was running an eating house (rehri)and several persons were present near his rehri to whom he was serving food". Similarly, Constable Devi Saran (PW2) has stated, "when we reached in front of B202, we saw one person running an eating house on a rehri". Thus, it is evident from the record that the accused was selling food from a rehri.
12. What is to be seen is whether a rehri can be categorised as an eating house. In order to arrive at the said finding, one has to look at the relevant provisions and the scheme of the Act. The section 2 (h) of The Delhi Police Act, 1978 provides a definition of an eating house. It provides as under: 2(h) "eating house" means any place to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises by any person owning, or having any interest in, or DD no. 40B 4/7 managing such place and includes:a refreshment room, boarding house or coffee house, or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop. But does not include a place of public entertainment.
13. The provisions of section 112 of The Delhi Police Act, 1978 provides a penalty for not obtaining a licence in respect of place of public entertainment or an eating house. The section provides as under:
12.Section112"Penalty for not obtaining licence in respect of place of public entertainment or certificate of registration in respect of eating house or for not renewing such licence or certificate within prescribed period.(1) Whoever fails to obtain a licence under this Act in respect of a place of public entertainment or a certificate of registration thereunder in respect of any eating house, or to renew the licence or the certificate, as the case may be, within the prescribed period shall, on conviction, be punished with fine which may extend to fifty rupees."
Thus, the section provides a penalty to be paid by a person who runs an eating house without obtaining the prescribed licence under The Delhi Police Act, 1978.
14. The provisions of section 112 of The Delhi Police Act have to be read with the provisions of Section 28 of the said Act. The section 28 (za) prescribes a condition for running an eating house. It provides as under: (za)"registration of eating houses, including granting a certificate of registration in each case, which shall be deemed to be a written permission required and obtained under this Act for keeping the eating house, and annual renewal of such registration within a specified period".
DD no. 40B 5/7The section 112 of the Act prescribes a penalty for violation of the provision contained section 28 (za) of the Act.
15. In order to constitute an offence under section 28/112 of the Act, the first and foremost ingredient which must be established is that accused was running an eating house. The definition of an eating house as provided under section 2 (h) of the Act suggests that there should be some element of permanency attached to it. The definition states that an eating house means any place to which the public are admitted and where any kind of food or drink is supplied for consumption on the premises itself. The proviso to this section provides that a refreshment room and a shop where any kind of food or drink is supplied to the public for consumption in or near such shop shall constitute an eating house. Thus, a shop where food or drink is supplied to the public for the consumption either in the shop or near the shop would constitute an eating house. In the present matter, the accused has himself admitted that he is selling food from a rehri and public persons are taking food near to the rehri. He had stated that there is no arrangement of sitting near the rehri and people consume food standing near to the rehri. He has mentioned that he is still selling food from the same rehri. Thus, there is an element of permanency. In such circumstances, there is hardly any scope of doubt that the rehri of the accused from which he is selling food falls within the definition of an eating house.
16. Ld defence counsel has vehemently argued that no independent person has been joined the investigation and therefore the entire investigation stands vitiated. Admittedly, no public person has been joined in the investigation. The question which is to be asked is whether the testimony of the witnesses and material on record is to be discarded in view of the fact that no independent person has been joined DD no. 40B 6/7 in the investigation. The answer is in negative. The testimony of SI Mahender Singh (PW1) and Ct Devi Saran (PW2) coupled with the admission of the accused establishes beyond reasonable doubt that the accused is running an eating house. There is no reason to doubt the testimony of the witnesses merely because they are police officials. It has been held by the Hon'ble Supreme Court in Karamjit Singh Vs State (Delhi Administration) reported in AIR 2003 SC 1311 that the statements of the police personnel should be treated in same manner as testimony of any other witnesses and there is no principal of law that without corroboration by independent witnesses, their testimony can not be relied upon. The court has held that the presumption that a person acts honestly applies as much as in favour of police personnel as of any other persons and it would not be a proper judicial approach to distrust and suspect them without good grounds. In the present matter, there is nothing on record which may suggest that there was any reason for the witnesses to depose falsely against the accused. Their testimony is to be awarded due weightage.
17. In view of the discussions made in the above said paras, I am of the considered opinion that the charges against the accused have been established. The testimony of the police officials is convincing. It is established that accused is running an eating house without obtaining the requisite licence from the competent authority. Accordingly, the accused Braham Singh stands convicted for committing an offence under section 28/112 of The Delhi Police Act, 1978.
Announced in open Court (SUDHANSHU KAUSHIK) on this day of 29th July, 2011. Metropolitan Magistrate02 (SE), Saket Courts New Delhi DD no. 40B 7/7