Delhi District Court
State vs Chandan Singh Etc. on 29 February, 2012
IN THE COURT OF SH. MUNEESH GARG, METROPOLITAN
MAGISTRATE KARKARDOOMA COURTS, DELHI
State versus Chandan Singh etc.
FIR No. 129/98
U/s. 7 Essential Commodities Act, 1955
PS: Geeta Colony
JUDGMENT :355 Cr.P.C.
a. Unique ID Number of the case : 02402RO580782008 b. Sl. No. of the case : 141/08 c. Date of commission of offence : 25.07.98 d. Name of complainant : SI Rajesh Kumar
e. Name & address of accused person : 1. Chanden Singh S/o Sh.
Charan Singh R/o House No. 3, Street No. 9, Geeta Colony, Block
-5 Delhi.
2. Parveen S/o Sh. Chanden Singh R/o House No. 3, Street No. 9, Geeta Colony, Block -5 Delhi.
f. Offence complained of : U/s 7 Essential Commodities Act.
g. Plea of accused : Pleaded Not Guilty
h. Arguments heard on : 18.02.2012
i. Final order : Acquitted
j. Date of Judgment : 29.02.2012
BRIEF STATEMENT OF REASONS FOR DECISION
1. Briefly stated, the prosecution initiated this case on the receipt of secret information on 25.07.98 at about 04:45 pm at 3/9, block 5, Geeta Colony, Delhi SI Rajesh Kumar alongwith HC Ashok Kumar, HC Dheeraj, Ct. Mohan, Ct. Om FIR No. 129/98 Page No. 1/23 Bir, Ct. Naresh Pal, Ct. Darshan, SI Jaipal Singh and secret informer had conducted raid at the house of accused persons. At the time of raid, both the accused person were mixing blank sand in cement. IO seized all the case property and samples vide Ex. PW 1/A and PW1/B respectively. IO prepared rukka for registration of FIR. On the basis of rukka, FIR was registered by duty officer under section 7 of The Essential Commodities Act, 1955. After completion of investigation, I.O. submitted charge sheet against accused Chandan Singh and Parveen Kumar.
2. On appearance of the accused persons before the Court, necessary copies were furnished to them u/s 207 of Code of Criminal Procedure, 1973 by my Ld. Predecessor . On 27.07.2004, charge was framed against accused persons u/s 7 of Essential Commodities Act, 1955 for violation of Rule 3 and Rule 6 of Notification No. 414 dated 19.07.1995 to which they pleaded not guilty and claimed trial.
3. The prosecution, in support of its case, examined as many as four witnesses. PW-1 SI Jai Pal is a recovery witness. He deposed that he alongwith SI Rajesh Kumar and other police officials joined raiding at the house of accused persons. They found two persons who disclosed their names during enquiry as Chandan Singh and Praveen Kumar were mixing powder like Kali Mitti in cement with the help of Fawda and bucket. IO apprehended both the accused. All articles and samples were seized with the seal of RK. IO also filled CFSL form at the spot and seal after use handed over to him. IO seized case property and sample vide Ex. PW-1/A and PW-1/B. IO arrested accused Chandan Singh and accused Parveen vide arrest memo Ex. PW-1/C and PW-1/D and conducted personal search of both the accused vide memo Ex. PW-1/E and PW-1/F respectively. During the proceedings, IO tried to contact the officials of Food and Supply Department but they were not available due to holiday. During the proceedings, IO also prepared Tehrir and got registered the case through Ct. Naresh Pal. PW-1 identified the case property Ex. P1, Ex. P2, FIR No. 129/98 Page No. 2/23 Ex. P3, Ex. P4 and Ex. P5 in the court. PW-1 was cross-examined by the defence.
4. PW-2 Ct. Ram Dyal is a formal witness who took 33 samples sealed with the seal of RK to deposit the same at office of the CFSL, Chandigarh on the direction of IO.
5. PW-3 SI Rajesh Kumar is the Investigating Officer of the case who deposed that on 25.07.98, he alongwith Ct. Darshan Singh, Ct. Omveer Singh and Ct. Naresh Pal was on patrolling at Geeta Colony, Pushta. At about 04:00 p.m., HC Ashok Kumar, HC Dheeraj and Ct. Mohan also met them at Pushta. At about 04:15 pm, one secret informer met them and gave the information regarding one person namely Chandan Singh who used to mix black sand in cement at his residence and the informer told them that Chandan Singh is mixing sand in cement even at that time also. So, without wasting further time, he alongwith aforesaid police staff and secret informer proceeded to street no. 9.
SI Jaipal Singh of PS Geeta colony also met them in street no. 8, near Gurdwara. He was also joined in the raiding team. At about 4:45 p.m., they had conducted raid at the premises of accused persons. Both the accused person were mixing black sand in the cement, the mixture was lying on the floor and empty plastic gunny bags were lying on the floor. All the case property and samples were sealed with the seal of RK. Case property and samples were taken into police possession vide separate seizure memo Ex. PW-1/A and Ex. PW-1/B respectivelly. He filled CFSL form at the spot. Copy of the same is mark A. He tried to contact Food and Supply Department but as it was being Saturday so he could not contact anyone. He prepared rukka Ex. PW-3/A and handed over the same to Ct. Naresh for registration of the FIR. He prepared site plan Ex. PW-1/B, arrested both the accused persons and conduct their personal search. Case property and samples were deposited in Malkhana PS Geeta Colony. He recorded statement of witnesses who joined investigation with him. On 27.07.98, he had given intimation to the department of Food and Supply. Copy FIR No. 129/98 Page No. 3/23 of the same is mark B. On 14.12.98, the samples were sent to CFSL office, Chandigarh through Ct. Ram Dyal.
6. PW-4 ASI Dheeraj Singh is also a recovery witness who joined raiding party alongwith IO and other police officials. PW-4 was cross-examined by the defence.
7. After closure of PE, Statement of the accused person was recorded under section 313 Code of Criminal Procedure, 1973. The plea of the defence was nothing but an utter denial. One witness namely Sukhandan Sharma, DW-1, was examined in defence.
8. On 18.09.2008, case was fixed for final arguments, however, on 17.01.2009 Ld. APP For the State moved an application U/s 311 Cr.P.C. to examine three witnesses namely Naresh Pal, Mahipal and Vishal Dutt which was allowed by Ld. Predecessor on 12.05.2009. Despite opportunity being given, prosecution failed to examine the abovesaid witnesses. Therefore, PE was closed by Ld. Predecessor vide order dated 19.11.2009 and matter was again fixed for final arguments.
9. I have heard the arguments of both sides and perused the record carefully.
DISCUSSION, DECISION AND REASONS THEREOF
10. Ld. APP for the State argued that evidence of Prosecution witnesses proved the case of prosecution beyond reasonable doubt. Ld. APP for the State submits that accused person admitted the case of prosecution as they did not cross-examine PW-3 IO SI Rajesh Kumar.
11. Per contra, Ld. Counsel for the accused person, prosecution has miserably failed to prove its case on the following points: Firstly, police officials were not competent to search the house of the accused as per paragraph 8 of the notification. Secondly, IO did not follow the procedure of testing of samples prescribed by paragraph 7 of the notification. Thirdly, report of CFSL is not admissible as chemical examiner was not examined to prove that seized cement is not of prescribed standard specified for cement. Fourthly, prosecution fails to rule out the possibility of tampering with seized samples. Fifthly, no public FIR No. 129/98 Page No. 4/23 witness/independent witness was joined during the investigation despite availability of the same. Sixthly, there are material contradictions, discrepancies and improvements in the testimony of prosecution witnesses which raise a serious doubt on the story of the prosecution. Seventhly, prosecution has not proved the Notification No. 414 dated 19.07.95 published in Gazette of India issued by Ministry of Industries.
A. Police Officials were not Competent to Search the Premises and Seize the Cement
12. First and foremost, I deem it appropriate to reproduce relevant portion of Paragraph 6 and Paragraph 8 of the Notification No. 414 dated 19.07.95 issued by Ministry of Industries:
Paragraph 6. Power to call for information.- The Appropriate Authority may, with a view to secure compliance with this Order:-
(a) xxx xxx xxx
(b) inspect or cause to be inspected any books or other documents or cement kept by or belonging to or in possession or under the control of any person engaged in the manufacture, storage for sale, sale or distribution of such cement;
(c) cause an officer duly authorised under paragraph 8 to enter and search any premises and seize cement in respect of which it has reason to believe that a contravention of this order has been made or the said cement is not of the prescribed standard;
Paragraph 8. Delegation of powers.- the Appropriate authority may by general or special order in writing authorise any officer to exercise on its behalf all or any of the functions under this Order :
Provided that no officer who is not of a Gazetted rank, shall be authorised by the Appropriate Authority to exercise the powers of search and seizure under Clause (c) of paragraph 6. PW-3 IO SI Rajesh Kumar deposed in his testimony that on 25.07.98, he alongwith Ct. Darshan Singh, Ct. Ombir Singh and Ct. Naresh Pal was on FIR No. 129/98 Page No. 5/23 Patrolling at Geeta Colony Pushta. HC Ashok Kumar, HC Dheeraj and Ct. Mohan also met them at about 4:15 pm at Pushta. At about 4:15 pm, one secret informer met them and gave information regarding Chandan Singh who used to mix black sand in cement at his residence i.e. H. No. 3, street no. 9, block 5, Geeta Colony, Delhi. Informer told that Chandan Singh is mixing the sand in cement at that time also. On receipt of this information, IO alongwith his staff conducted raid of the aforesaid premises at about 4:45 pm. Thus, it is abundantly clear that IO had made no effort to contact the authorised officer before conducting the raid at the premises of accused persons. The testimony of PW-3 IO SI Rajesh Kumar and rukka Ex. PW3/A clearly shows that he tried to contact Food and Supply Department after conducting raid at the premises of the house and seizure of the case property and preparing of CFSL Form.
13. The bare reading of Paragraph 8 of the Notification shows that only the authorised officer is empowered to conduct search and seizure under clause (c) of paragraph 6. The Legislature prescribed stringent punishment against the person engaged in the manufacture, storage for sale, sale or distribution of cement in contravention of notification. Since the punishment is severe, therefore, the compliance of procedure prescribed under the provisions of this Order become all the more essential. Non-compliance of these provisions, which the statute requires to be complied with, will create doubt in the taking of sample. Notification has given the mandate which has to be adhered to and complied with. It is not an empty formality. In this case from the testimony of IO SI Rajesh Kumar, PW-3, it is clear that he had shown casual attitude in complying with the provisions of notification. He made no efforts to contact the competent authority before conducting raid at the premises of accused persons.
14. ASI Dheeraj Singh, PW-4, nowhere in his examination-in-chief deposed that IO SI Rajesh Kumar tried to contact officials of Food and Supply Department. Surprisingly enough, PW-4 for the first time in this case, during his cross-examination, stated that ACP Sh. Hari Bhushan had come on the spot at FIR No. 129/98 Page No. 6/23 about 4:50 pm. It is also stated by PW-4 that no permission to search of the house was taken from him. ACP did not sign any memo in my presence. He did not state in his statement to the IO regarding the arrival of ACP Hari Bhushan at the spot. In the whole case, there is no whisper regarding the presence of ACP at the spot except in the cross-examination of PW-4. If the presence of PW-4 at the spot is to be accepted true, for the best known reasons IO concealed the presence of ACP. Surprisingly, IO did not bother to take permission from the ACP. Considering the fact that only authorised officer of Gazetted rank can conduct the search and seizure under clause (c) of paragraph 6, I am wondering why an officer of the rank of SI who is not a officer of gazetted rank conducted search and seizure when higher official of the rank of ACP was present at the spot. The Supreme Court in State of Punjab v. Balbir Singh AIR 1994 SC 1872 has laid down that a search or arrest in violation of the provisions of the NDPS Act vitiates the trial. Therefore, if an arrest or search contemplated under Sections 41 and 42 is made under a warrant issued by any other Magistrate or is made by any officer not empowered or authorised, it would per se be illegal and would affect the prosecution case and consequently vitiate the trial.
Nand Lal v. State of Rajasthan (1987) 3 Crimes 629 (Raj) is a case where a police head constable and a station house officer were not empowered to carry out investigation and it was contended that the whole investigation was illegal and consequently the trial was vitiated. The Rajasthan High Court held that for launching the prosecution or for initiating the proceedings under the Act, the authority doing so must have a clear and unambiguous power. In Bhajan Singh v. State of Haryana (1988) 1 Crimes 444 (P&H) it was observed that only officers empowered under the Act can take steps regarding entry, search, seizure and arrest and that the relevant provisions of the Act are mandatory. In Umrao v. State of Rajasthan (1988)2RLW25 it was held that the search made by a police constable without jurisdiction and investigation made by an officer not empowered, vitiate the trial. In Shanti Lal v. State of FIR No. 129/98 Page No. 7/23 Rajasthan (1989) 1 Crimes 276 (Raj) it was similarly held that search and arrest made by SHO who was not authorised under the Act, were illegal.
Therefore, to my mind, in view of the admitted position on record, the only conclusion which can be reached is that in this case there is clear violation of the paragraph 8 of the notification.
B. Non-compliance With Procedure of Testing of Samples Prescribed by Paragraph 7 of the Notification
15. It is necessary to note what is provided under paragraph 7 of the notification. Paragraph 7 reads as under :
7.Testing of Samples.- Samples of cement bearing the Standard Mark and drawn by the Appropriate Authority, for ascertaining whether they are of prescribed standard, shall be tested in the laboratory approved by the Bureau and in the manner as may be determined by the Bureau.
The bare reading of paragraph 7 shows that to ascertain whether samples of cement are of prescribed standard, samples shall be tested in the laboratory approved by the bureau and in the manner determined by the Bureau. Clause (b) of paragraph 2 defines "Bureau" means the Bureau of Indian Standard. Clause
(d) defines "prescribed standard" means the Indian Standard Specification of cement prescribed by the Bureau of Indian Standards. Clause (c) defines "cement" means any variety of cement manufactured in India and includes blast furnace slag cement, portland pozzolana cement, rapid hardening Portland cement, hydrophobic Portland cement, ordinary Portland cement, low heat Portland cement, high strength ordinary Portland cement, cement used for the manufacture of railway sleepers, masonry cement, oil well cement, super sulphated cement or any other variety of cement which the Central Government may, by notification in the Official Gazette, specify for the purpose of this Order.
16. Thus, it is incumbent upon the prosecution to prove that samples of cement were taken in the manner prescribed by the Bureau of Indian Standard FIR No. 129/98 Page No. 8/23 considering the variety of cement and preserved in consonance with manner prescribed by the Bureau and send to the approved laboratory within the prescribed period. According to testimony of IO SI Rajesh Kumar, PW-3, at the time of raid, both the accused person was mixing black sand in cement, mixture was lying on the floor and empty gunny bags were also lying on the floor. On one side of the room 10 plastic gunny bags of mixture was lying and on the other side of the room 70 cement bags of DLF Premium Cement, 33 grade ISI of DLF Cement Limited in sealed condition were lying. Six bags of black sand were also lying, one bucket and fawda was also lying near the mixture. He marked 70 cement bags as C1 to C70. He taken out one kilogram cement from each 10th bag as sample and 7 sample packets were prepared. Sample packets were marked as C-10/1 to C-70/7. Similarly black sand bags were also marked as E1 to E6. Ten bags which were filled with mixture were also marked as M1 to M10 and one Kilogram of mixture was taken out from each bag as sample in 10 pulindas and each pulinda was marked as M1/1 to M10/10 respectively. One kilogram mixture was also taken out from the mixture which was lying on the floor and it was kept in a pulinda and marked as SM. Rest of the mixture was collected in 5 plastic bags which were marked as SM1 to SM5 respectively. One truck bearing registration no. DL 1 LA 6375 loaded with 90 bags of black soil was also parked outside the house of accused. Same were marked as ET1 to ET90 respectively. One kilogram of sample was taken from each 10 th bag and marked as ET1/1 to ET90/10. All the case property and samples were sealed with the seal of RK. Case property and samples were taken into police possession vide separate seizure memos Ex. PW1/A and Ex. PW2/B respectively. IO SI Rajesh Kumar, PW-3, filled the CFSL Form at the spot. Case property and samples were deposited in malkhana PS Geeta Colony. On 14.12.98, the samples were sent to CFSL office, Chandigarh through PW-2, Ct. Ram Dayal. As per CFSL report, prepared by Chemical Examiner, Mahipal Singh of Central Forensic Science Laboratory, Chandigarh samples SI (exhibits no.1 to 7), Samples S2 (exhibits no.8 to 13), Samples (SM) (exhibits no.14) and FIR No. 129/98 Page No. 9/23 Samples S4 (exhibits no.15 to 24) are ordinary Portland cement of different variety. As per the CFSL report, Sample S5 (Ex. 25 to 33) is not cement.
17. Before considering the fact whether IO follow the procedure as lay down by the Bureau, I would deem it appropriate to mention the procedure of storage and testing of samples fixed by the Bureau of Indian Standard for Ordinary Portland Cement, 33 Grade. Paragraph 7 of Ordinary Portland Cement, 33 Grade - Specification of Bureau lay down that the cement shall be stored in such a manner as to permit easy access for proper inspection and identification, and in a suitable waterproof building to protect the cement from dampness and to minimize warehouse deterioration. Paragraph 11 of Ordinary Portland Cement, 33 Grade - Specification of Bureau, inter-alia, lay down that all the test shall be commenced within one week of sampling. It further lays down that when it is not possible to test the samples within one week, the samples shall be packed and stored in air-tight container till such time they are tested.
18. Now the question arises whether IO followed the above procedure as prescribed by Bureau for storage and testing of samples. It is admitted story of the prosecution that samples were seized in clothes pulindas on the date of incident i.e. 25.07.98. PW-1 admitted in his cross-examination that content taken out from case property were directly placed in cloth pulinda as sample. He also admitted the fact they did not have any tight container nor the samples were kept in any air tight container. It is also not in dispute that samples were sent to CFSL Office, Chandigarh through PW-2 Ct. Ram Dayal on 16.12.98. So, it is ex-facie clear that there was considerable delay of 4-5 months in sending the samples to CFSL Laboratory for testing. Thus, it was the duty of MHC(M) to store the seized samples Ex. PW1/B at suitable place and in air tight container. However, prosecution fails to examine the MHC(M) in the present case and possibility of non-compliance with the prescribed norms of Bureau of keeping the samples at suitable place and in air tight container could not be ruled out considering the fact that samples produced in the court sealed with the seal of CFSL, Chandigarh were in 33 clothes pulindas. SI Jaipal Singh, FIR No. 129/98 Page No. 10/23 PW-1, in his cross-examination, stated that case property was lying in the open outside the malkhana. This is clear non-compliance of the prescribed norms of Bureau and this deviation is not justifiable in the eyes of law. The mandatory provisions of the Cement Control Order have not been complied with inasmuch as sample was not taken in the manner as laid down.
In Gian Chand Luthra v. State of Punjab, 1988 C.C Cases 534 (HC), Ujagar Singh, J. of Punjab and Haryana High Court observed the effect of taking samples in contravention of the mandatory rules of Fertilizers Control Order as follows:
"The rules require that sample should be more than 0.5 kg and this weight has to be mentioned, but in this case no such weight was noted. The facts noted above are not contradicted by any reply which was to be filed on behalf of the State. The counsel for the petitioner relies upon a judgment of Pritpal Singh, J. (as he then was) in Crl. Misc. No. 5000-M-1986 decided on 15.1.1987 laying down that under clause (4)(2)(ii) of the Schedule II of the Fertilizer Control Order, 1957, sample is required to be placed in suitable clean, dry and airtight glass or other suitable container and stored in shade. As it was not done in that case, it was held that the mandatory provisions of law have been contravened and therefore, the F.I.R. and the proceedings in pursuance thereof were quashed."
C. Non-admissibility of Report of CFSL
19. Ld. Counsel for accused person argued that report of CFSL is not admissible as chemical examiner was not examined to prove that seized cement is not of prescribed standard specified for cement. On the other hand, Ld. APP submits that report of CFSL is admissible under section 293 Code of Criminal Procedure even without examination of chemical examiner. I find force in the contention of Ld. Counsel for accused persons on two-fold reasons. Firstly, the result of examination depends on the sample taken out from grade of cement FIR No. 129/98 Page No. 11/23 send for chemical examination. Prosecution witnesses in their testimony deposed that 70 bags of DLF Premium Cement, 33 Grade, ISI were seized at the spot. However, prosecution witnesses failed to specify the grade of other material seized at the spot. It is the chemical examiner who could exactly tell grade of cement of Samples S2, SM and S4 and specify whether that is of prescribed standard specified for that grade of cement. Secondly, prosecution fails to prove the fact that Central Forensic Science Laboratory, Chandigarh is the laboratory approved by Bureau for the purpose of testing of samples of cement. The official website of Bureau of Indian Standard as URL http://www.bis.org.in/lab/osladd1.htm visited on 20.02.2012 do not contain Central Forensic Science Laboratory, Chandigarh in the list of recognised laboratories. Therefore, report of chemical examiner of a laboratory which is not approved by the Bureau for the purpose of testing of samples cannot be read in evidence as the same is obtained in violation of prescribed rules.
D. Possibility of tampering With Seized Samples
20. I find merit in the submission of Ld. Counsel for accused person that prosecution fails to rule out the possibility of tampering with seized samples and, therefore, necessary link between the seized articles allegedly recovered from the accused and the report of Chemical Examiner is missing in the case. It is incumbent upon the prosecution to prove that not only the seized material was duly seal seized and was duly deposited in the Police malkhana un-tampered but it was also necessary to prove that the samples which had duly sealed on the spot remained intact till it reached the office of the CFSL, Chandigarh. It has come in the testimony of IO SI Rajesh Kumar, PW-3 that all the case property and samples were sealed with the seal of RK. He filled up CFSL form at the spot. Case property and samples were deposited in malkhana PS Geeta Colony. PW-1 testified that all articles and samples were sealed with the seal of RK and IO also filled up CFSL form at the spot and seal after use handed to him. In his cross-examination PW-1 stated that he had accompanied the IO for depositing the case property. Neither the MHC(M) has been examined as witness nor the FIR No. 129/98 Page No. 12/23 malkhana register has been produced in the court to prove the fact that IO deposited the seized articles and samples alongwith CFSL form in the malkhana on the day of incident itself. Non-examination of MHC(M) creates suspicion on the story of prosecution regarding factum of depositing of seized sample in the malkhana. PW-1 had not stated in his testimony as to whom he had handed over the seal given to him by the IO. PW-2 Ct. Ram Dayal testified that on 16.12.98, he took 33 samples duly sealed with the seal of RK to deposit the same at office of CFSL, Chandigarh on the direction of IO. PW-2 does not mention in his testimony that he had taken the samples from MHC(M). Therefore, the possibility of tampering of samples and of seal till to be remained with IO till the sample packet sent to office of CFSL could not be ruled out with precision. Thus, possibility to tamper with the seals on the samples by the IO cannot be ruled out.
In the case of Datu Ram Vs. State (1996)1 AD (Delhi) 52, it has been held that all the links starting from the seizure of sample till the same reaches the hands of public analyst must be proved to conclude that the seals remained intact.
In the case of Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52, it has been held that in the absence of any link evidence that the property was deposited in the malkhana intact, accused is entitled to benefit of doubt.
21. Further, it was necessary to prove that the CFSL form containing the specimen seals which was duly filled at the spot at the time of taking of the sample also remained intact till it reached the office of the CFSL. In the instant case, IO testified that he filled up CFSL form at the spot. However, none of the prosecution witness deposed that CFSL form was deposited alongwith seized articles and samples in the malkhana. The testimony of PW-2 is silent on the point whether he carried CFSL form alongwith samples to the office of CFSL, Chandigarh. There is not an iota of evidence to show as to where the CFSL Form containing the specimen seal had remained till the samples seized was examined by Chemical Examiner. Thus, in the instant case, there is absolutely FIR No. 129/98 Page No. 13/23 no link between the seizure with all the safeguard against tampering of the articles till the sample was sent for chemical analysis.
I have also relied upon on the ratio of Hon'ble High Court of Delhi of Ashok Kumar vs. State, 2000[1] JCC [Delhi] 167 on this aspect wherein it was observed that prosecution failed to bring to the knowledge of the Court that after the packets were sealed and CFSL form completed, where these articles remained upto the time they were sent to the officers of the laboratory. Registers concerned of the Malkhana do not disclose these facts. So it can not be said that these documents were not tampered with in the meantime. Because of these serious infirmities benefit of doubt goes to accused.
E. Delay in Sending Samples to CFSL
22. The contention that samples were not sent to the office of CFSL immediately creates doubt in the case of prosecution is not without merit. Admittedly, samples were taken on 25.07.98. They were deposited in the malkhana by the Investigating Officer SI Rajesh Kumar on 25.07.98 itself. Till 16.12.98, the samples were not sent to the office of the CFSL. Why it remained with Moharrar Malkhana, not a whisper is there? No reason has been assigned for its non deposit in the office of CFSL. This shows the casual attitude or the case of the prosecution is not so straight forward and truthful. Because of non- sending of samples to the office of CFSL immediately it creates doubt in the case of the prosecution as there is likelihood of the sample having been tampered with. In Matloob vs. State (Delhi Administration), 1997 IV AD (Delhi) 178, it has been observed by the Hon'ble Delhi High Court that delay and latches in despatching samples to CFSL is fatal for prosecution.
23. It is worthy to note that Delhi High Court Rules and Orders Part-III Chapter 18-B, inter-alia, provides that articles for the opinion of the chemical examination should be forwarded without the least possible delay. In considering all this, delay if any, can be explained by the prosecution. Samples to CFSL in the present case were despatched about five months after the articles were seized and no explanation for so much time taken in despatching the FIR No. 129/98 Page No. 14/23 samples is forthcoming on the record. Thus the prescribed promptitude appears to be lacking in this case. Reliance is placed on the citation 1997 IV AD (Delhi)
178. F. Non-joining of Public Witness in the Recovery
24. I also find that IO has also not made any public witnesses of the recovery of the alleged recovery of cement and black sand from accused persons despite the fact that alleged spot was a residential area. In this regard, the explanation of the prosecution witnesses was that none of the public persons agreed to join the investigation. The explanation given by the prosecution witness does not seem plausible because in the police report as well as the testimony of the prosecution witnesses, the names of the public persons, who were requested to join the investigations, have not been mentioned. IO has also not taken any action against such public persons who did not render help to the public servant despite they were being under an obligation to render help on the legitimate request of the public servant.
I have relied upon Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genius attempt having been made to join public witnesses. It is further held that a stereotype statement of non availability of any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
In the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that:
" The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in FIR No. 129/98 Page No. 15/23 the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the begining was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-
witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In his cross-examination PW-4 Stated that information regarding receiving secret information was given to In-charge, Special Staff East District from PCO. Strangely, PCO owner was not asked to join the raiding party by the IO. In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
18. "It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
25. IO also did not comply with the clause (d) of Paragraph 6 of the Notification. Clause (d) of Paragraph 6 requires that the provisions of Section FIR No. 129/98 Page No. 16/23 100 of the Code of Criminal Procedure, 1973 relating to search and seizure shall, so far as may be, applied to search and seizures under this paragraph. I have carefully perused the provisions of Sec. 100 of Cr.P.C. Sub-Sec. 4 to Section 100 of Cr.P.C. mandates that while conducting search under chapter VII, two or more independent and respectable inhabitants of the locality (in which the place to be search is situated or of any other locality, if no such inhabitants of the said locality is available or is willing to be a witness to the search), shall be called upon to attend and witnesses the search. Furthermore, the officers conducting search may issue an order in writing in this regard. In his cross-examination PW-1 stated that the house of the accused was situated in the thickly populated area. PW-1 also stated in cross-examination that he does not remember that any written notice was given to any neighbour to witness the house search. PW-4 in his cross-examination stated that no neighbour was asked in writing to join the raiding party.
It is a settled proposition of law that Sub-section 4 to Sec. 100 of Cr.P.C. is a directory provision, however, the explanation of non-joining of independent witness should also be plausible. In nearly each and every case, a general explanation is given that no public witness volunteered to join the search/investigation and it appears that even the "directory" provision has been made nugatory. Such a vital provision cannot be made a dead letter in the statute book as it is intended to curb any false recovery.
26. Therefore, I am of the considered view that prosecution has failed to show a genuine effort to make a public witness in regard of alleged recovery of case property from the possession of the accused person.
G. Discrepancies, Contradictions and Improvements in Testimonies of Prosecution Witnesses
27. I find force in the contention of Ld. Counsel for the accused person that testimony of prosecution witnesses contains discrepancies, contradictions and improvements. PW-1 SI Jai Pal Singh in his cross-examination stated that FIR No. 129/98 Page No. 17/23 samples parcels were stitched with machine on three sides. PW-1 also stated in his cross-examination that there were no sewing machines with IO at the spot. No explanation was given by the IO in this respect in his testimony. This discrepancy in the testimony of PW-1 cast a serious doubt on the genuineness of seizure on the spot as claimed by the prosecution. In his cross-examination PW-1 stated that the house was a single story, while PW-4 in his cross- examination stated house was double story. The only inference which can be drawn from this is that either PW-1 or PW-4 was not present at the spot. PW-4 in his cross-examination stated that IO inscribed details of FIR Number on the parcel at the spot before 9.00 PM. Perusal of rukka Ex. PW3/A, however, reveals that FIR was registered at 9.15 PM. This is a material contradiction and creates suspicion with respect to preparation of seizure memos Ex. PW1/A and Ex. PW1/B on the spot and testimony of PW-4. PW-4 for the first time in this case, during his cross-examination, stated that ACP Sh. Hari Bhushan had come on the spot at about 4:50 pm. None of the witness or document discloses the presence of ACP on the spot at relevant time. It seems that prosecution introduced ACP in the story to cover the lacuna of search and seizure by unauthorised officer at the later stage. This improvement weakens the story of prosecution further rather than strengthen it.
28. According to the deposition of prosecution witnesses, the case property was first seized and then rukka was prepared for registration of FIR. Thus according to the witnesses, FIR was registered after seizure of case property. However, the seizure memo bears the FIR number. At the time of the seizure, FIR number was not available and therefore, FIR number could not have figured on the seizure memo. The existence of FIR number on seizure memo suggests that the seizure memo was prepared after the registration of FIR and is therefore ante-timed. This erodes the credibility of the witnesses, namely PW-1 SI Jai Pal Singh, PW-3 SI Rajesh Kumar and PW-4 ASI Dheeraj Singh who have stated that the seizure memo was prepared on the spot and before the registration of FIR.
FIR No. 129/98 Page No. 18/23In Lalji Shukla Vs. State (2000) 1 AD (Cr.) DHC, M.S.A. Siddiqui, J. of Delhi High Court observed as follows:
"4.....the prosecution has not offered an explanation whatsoever as to under what circumstances number of the FIR (Ex. PW6/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This give rise to two inferences that either the FIR (Ex PW6/B) was recorded prior to the alleged recovery of the contraband or number of the FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant."
H. Notification not proved by the Prosecution
29. Ld. Counsel for accused person submits that prosecution has not proved the Notification published in Gazette of India. On the other hand, Ld. APP for the State submits that court may take judicial notice of the notification published in the Gazette of India and need not to be proved. I find merit in the submission of Ld. APP for the State. Section 56 of Indian Evidence lays down that no fact of which the court will take judicial notice need to be proved. Section 57 of Indian Evidence Act lays down, inter-alia, that the court shall take judicial notice of all laws in force in the territory of India. In Ramji Raja Vs. Pancham Singh AIR 1957 MP 269, it has been observed where the notification is published in the Official Gazette, no proof is necessary. The court cannot say that it will not take judicial notice of such notification. Therefore, the prosecution need not require to prove the Notification No. 414 dated 19.07.95 published in the Gazette of India issued by Ministry of India. The burden to prove that notification was not in force at the relevant time was on the accused.
FIR No. 129/98 Page No. 19/23Accused failed to rebut the same, therefore, notification shall persume to be in force at the relevant time.
I. Possession of Cement for purpose other than sale, sell or distribution is not an Offence under the Notification
30. Ld. Counsel for the accused argued that mere possession of cement or black sand itself is not an offence. Paragraph 3 of the Notification lay down that no person shall himself or by any person on his behalf, manufacture or store for sale, sell or distribute any cement which does not conform to the prescribed standard and which do not bear the Standard Mark. Thus, the Paragraph 3 of the Notification prohibits manufacturing or storage of cement, which does not conform to prescribed standard, for sale, sell or distribute. It means that if the purpose of storage of cement is not for sale, sell or distribution, it does not come in the ambit of prohibition. It is the story of the prosecution that accused persons were engaged in the supply of cement after mixing the same it with black sand. However, none of the prosecution witness in his testimony utters a word that accused persons were mixing the cement with black sand for sale, sell or distribution. No investigation was done by the Investigation Officer to prove the factum of involvement of accused person in manufacturing/storage cement for the purpose of sale, sell or distribution. DW-1 Sukhandan Sharma testified that the house of accused person was under construction and cement is required for construction purpose. Accused person produced the bill, however, they refused to listen and took away accused persons with them. No doubt, DW-1 did not disclose the exact date, month or year of the incident, however, he stated that incident occurred about 8 or 9 years ago. Considering the age i.e. 70 years of DW-1 and gap of time between date of incident and recording of his testimony, the failure to disclose the exact date, month or year of the incident is quite natural. Rather it shows that the testimony of DW-1 is not tutored one. Further, one bill dated 1/7/98 of purchase of O.P.C Cement of 135 bags for Rs. 27,500 issued by SHA Traders for customer Chandan Singh placed on judicial record is in consonance with the testimony of DW-1 who deposed that accused FIR No. 129/98 Page No. 20/23 produced the bill and corroborated his presence at the spot on the relevant date and time. In his cross-examination, PW-1 SI Jai Pal Singh stated that I cannot say if there was no ban for keeping in possession of black soil (sic). It shows that prosecution witness is not even sure regarding the fact of ban on possessing black soil at the relevant time. Thus, mere possession of cement or black sand is not an offence if the same is for construction of one's house. The offence constitute only when manufacturing or storage of cement which is not of prescribed standard and for the purpose of sale, sell or distribution. Prosecution fails to prove that accused persons were engaged in manufacturing or storage of cement of below prescribed standard for the purpose of sale, sell or distribution.
J. Non Cross-examination of Prosecution Witness
31. I do not find merit in the submission of Ld. APP for the State that by failure of cross-examination of one prosecution witness namely PW-3 IO SI Rajesh Kumar by defence, case of the prosecution stands proved. No doubt, it is one of the settled propositions of law that non cross-examination of witness on a particular point amounts to admission on such point. However, it is also basic principle of criminal jurisprudence that prosecution has to stand on its own legs and it can not drive any benefit, whatsoever, from the weaknesses, if any, in the defence of the accused. Reliance is placed on the citation AIR 1984 SC 1622. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. In case law reported as Sadhu Singh vs. State of Pubjab, 1997 (3) Crimes 55, The Hon'ble Punjab and Haryana High Court observed as under:
5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts.
It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go to the accused...
32. This is a classic case where the prosecution has flouted all the principles of law by violating the mandatory procedure for search and seizure prescribed FIR No. 129/98 Page No. 21/23 by the notification. In the instant case, search and seizure of the premises was conducted by SI Rajesh Kumar who is not an officer of Gazetted rank and not authorized by appropriate authority for the same. He did not comply with the procedure prescribed by the Bureau of Indian Standard for testing of sample seized by him during the search. No independent witnesses were joined by him at the time of recovery and seizure of case property and samples. IO caused the delay in sending the samples to the officer of CFSL, Chandigarh. Resultantly, IO caused grave injustice to the accused persons who faced a long trial due to his insensitiveness towards the mandatory procedure prescribed by law and casual attitude towards investigation.
33. In view of the aforesaid discussion, I am of the considered view that prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. Therefore, accused Chandar and Praveen Kumar stands acquitted of the charge U/s 7 The Essential Commodities Act, 1955. Bail bond of accused and surety be discharged after six months in view of the section 437 A CrPC. After compliance file be sent to record room.
Announced in the Open Court on dated 29.02.2012. This judgment contains 23 pages and each paper is signed by me.
(MUNEESH GARG) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI FIR No. 129/98 Page No. 22/23 State versus Chandan Singh etc. FIR No. 129/98 U/s. 7 Essential Commodities Act, 1955 PS: Geeta Colony 29.02.2012 Present: Ld. APP for the State.
Both accused with counsel.
Vide my separate judgment of even date, both accused are acquitted of the charge under section 7 Essential Commodities Act. Bail bond of both the accused persons and sureties be discharged after six months in view of the section 437 A Cr.P.C. Documents, if any, be released after cancellation of endorsement to the person entitled. File be consigned to record room after compliance.
(Muneesh Garg) MM/KKD/29.02.2012 FIR No. 129/98 Page No. 23/23