Delhi District Court
State vs Prem Kumar on 13 April, 2026
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT,
New Delhi.
FIR No. 610/18
PS: Dabri
U/s: 9B of Explosive Act
Case no. 15748/2019
State Vs. Prem Kumar
S/o Sh. Chaman Lal
R/o H. No. G-93, Rajapuri,
Main Road, New Delhi ........Accused
S. No. of the case : 15748/2019
The date of offence : 06.11.2018
The name of the complainant : HC Jagmohan Singh
The name of the accused : Prem Kumar
The offence complained : Section 9B of Explosive Act
The plea of the accused : Pleaded not guilty
Argument heard on : 13.04.2026
The date of order : 13.04.2026
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that on 06.11.2018, he was posted as Ct. at PS Dabri. On that day, he alongwith IO / HC Jagmohan were patrolling in beat no. 8. At about 8.00 PM, when they reached Rajapuri Road, Secret informer informed them that in 'Shop for all' at Rajapuri Road, the shopkeeper is selling fire crackers without any valid license FIR NO. 610/2018 State Vs. Prem Kumar 1 of 11 for the same. Thereafter, he alongwith HC Jagmohan and Ct. Devender went to that shop at about 8.15 PM and found the accoused Prem Kumar selling crackers without any valid licence or permit.
2. An FIR bearing No. 610/2018, U/s 9B of Explosive Act was registered at PS Dabri against the accused. Investigation of the case was handed over to Investigating Officer IO HC Jagmohan Singh who filed the chargesheet.
3. On completion of investigation, a chargesheet u/s 9B of Explosive Act was filed against the accused. After taking cognizance of the offence, the accused was summoned to face trial.
4. 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 9 B of Explosive Act was framed against him, to which he pleaded not guilty and claimed trial.
5. During the course of trial, the prosecution examined the following witnesses.
6. HC Sumit was examined as PW1. He stated thus: "On 06.11.2018, I was posted as Ct. at PS Dabri. On that day, I alongwith IO / HC Jagmohan were patrolling in beat no. 8. At about 8.00 PM, when we reached Rajapuri Road, Secret informer informed us that in 'Shop for FIR NO. 610/2018 State Vs. Prem Kumar 2 of 11 all' at Rajapuri Road, the shopkeeper is selling fire crackers without any valid license for the same. Thereafter, I alongwith HC Jagmohan and Ct. Devender went to that shop at about 8.15 PM and found the accoused Prem Kumar (present in the court and correctly identified by the witness.) selling crackers without any valid licence or permit. He did not has any fire extinguishing equipments in the said shop. It was in complete disregard with the fire safety norms. We asked 4-5 public persons to join the investigation but non agreed for the same. IO prepared the tehrir which is Ex. PW1/1. IO sent Ct. Devender for registration of FIR to the PS after giving of tehrir. IO prepared the site plan Ex. PW1/2. IO seized the fire crackers vide seizure memo Ex. PW1/3 (Bearing my signature at point A). IO recorded disclosure statement of accused which is Ex. PW1/4. I arrested the accused vide memo Ex. PW1/5 (Bearing my signature at point A and released him on personal bond vide memo Ex. PW1/6. IO recorded my statement. Application for destruction order and order of destruction passed by the court is now marked as Mark B1 and Mark B2. Photographs of the case property is shown to the witness. Witness correctly identified the photos and same is Ex. A-1 Colly. "
7. In his cross-examination, PW1 stated thus: "No notice was served to any public person in my presence for joining the investigation. IO did not take statement of any public persons in my presence. No photography or videography was done at the time of seizure of case property. No fire cracker was checked by lighting fire to confirm whether same is artificial or original fire cracker. It is correct that there were shops nearby. It is wrong to suggest that accused is falsely FIR NO. 610/2018 State Vs. Prem Kumar 3 of 11 implicated in the present case and I am deposing falsely at the instance of the IO."
8. ASI Jagmohan was examined as PW2. He stated thus: "On 06.11.2018, I was posted as HC at PS Dabri. On that day, I alongwith Ct. Sumit and Ct. Devender were patrolling in beat no. 8. At about 8.00 PM, when we reached Rajapuri Road, Secret informer informed us that in 'Shop for all' at Rajapuri Road, the shopkeeper is selling fire crackers without any valid license for the same. Thereafter, I alongwith Ct. Sumit and Ct. Devender went to that shop at about 8.15 PM and found the accoused Prem Kumar (present in the court and correctly identified by the witness.) selling crackers without any valid licence or permit. He did not has any fire extinguishing equipments in the said shop. It was in complete disregard with the fire safety norms. We asked 4-5 public persons to join the investigation but non agreed for the same. I prepared the tehrir which is already Ex. PW1/1 (Bearing my signature at point A). I sent Ct. Devender for registration of FIR to the PS after giving of tehrir. I prepared the site plan already Ex. PW1/2 (Bearing my signature at point A). I seized the fire crackers vide seizure memo already Ex. PW1/3 (Bearing my signature at point B). I recorded disclosure statement of accused which is Ex. PW1/4(Bearing my signature at point A). I arrested the accused vide memo Ex. PW1/5 (Bearing my signature at point B and released him on personal bond vide memo Ex. PW1/6 (Bearing my signature at point A) . I recorded statement of witnesses. Application for destruction order and order of destruction passed by the court is already marked as Mark B1 and Mark B2. Photographs of the case property is shown to the witness.
FIR NO. 610/2018 State Vs. Prem Kumar 4 of 11 Witness correctly identified the photos and same is already Ex. A-1 Colly. "
9. In his cross-examination, PW2 stated thus: "No notice was served to any public person in my presence for joining the investigation. I did not take statement of any public persons in my presence. No photography or videography was done at the time of seizure of case property. No fire cracker was checked by lighting fire to confirm whether same is artificial or original fire cracker. It is correct that there were shops nearby. Sample of fire cracker were not sent to FSL. It is wrong to suggest that accused is falsely implicated in the present case and I am deposing falsely."
10. Statement of accused was recorded under Section 294 Cr.P.C and he admitted the following documents:
a. FIR No. 610/2018. PS Dabri is Ex.P1.
11. Thus, witness at serial No.1,2 and 5 were dropped from the list of witness.
12. The prosecution evidence was closed and thereafter the statement of accused u/s 313 Cr.P.C was recorded on 13.04.2026 wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was not found in possession of 18 KG fire crackers as per seizure memo Mark A. That he has been falsely implicated in this present case. That he is FIR NO. 610/2018 State Vs. Prem Kumar 5 of 11 innocent and all the witnesses deposing against him are interested witnesses. The accused chose not to lead any evidence in his defence.
13. 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 18 KG fire- crackers as per seizure memo. 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.
14. 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.
15. 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
16. 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 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 FIR NO. 610/2018 State Vs. Prem Kumar 6 of 11 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 analysed.
I. Non-joining of Public Witnesses
17. 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.
18. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the testimony of PW-1 and PW2 reveals that they have categorically stated that there were shops nearby and no notice was served to any public persno in their presence for joining the investigation. 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 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.
FIR NO. 610/2018 State Vs. Prem Kumar 7 of 11
19. 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).
20. 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.
FIR NO. 610/2018 State Vs. Prem Kumar 8 of 11
21. It is further pertinent to note that during the course of trial, no seal handing over memo was ever produced by the IO/ prosecution which could conclusively ascertain that no tampering of the case property was carried out. Since during the course of trial, no seal handing over seal was produced, it is apparent that no seal was handing over memo was ever prepared by the IO. 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.
22. 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."
IV. No departure or the arrival entry of PW 1 and PW2.
23. The present case rests entirely on the alleged recovery of case property, i.e. 18 KG fire crackers, from the possession of the accused at the FIR NO. 610/2018 State Vs. Prem Kumar 9 of 11 relevant time by a police official PW 1 and PW2, who were on patrolling duty at the relevant time and place, as per the prosecution story.
24. 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 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 law1 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 FIR NO. 610/2018 State Vs. Prem Kumar 10 of 11 reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
25. In the present matter there exists no entry which could even remotely suggest that PW 1 and PW 2 were assigned patrolling duty on the given date and time and they went for the purpose of patrolling at the given date and time.
26. Thus, in light of the above discussions which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt that 18 kg fire crackers was recovered from the possession of the accused. The accused Prem Kumar, is, therefore, acquitted of the offence u/s 9B of Explosive Act.
Announced in the open court on 13.04.2026 Digitally
signed by
HARSHAL
HARSHAL NEGI
NEGI Date:
2026.04.13
15:57:28
+0530
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 13.04.2026
It is certified that the present judgment runs into 11 pages and each Digitally page bears my signature. signed by HARSHAL HARSHAL NEGI NEGI Date:
2026.04.13 15:57:36 (Harshal Negi) +0530 JMFC-02/DwarkaCourt, New Delhi, 13.04.2026 FIR NO. 610/2018 State Vs. Prem Kumar 11 of 11