Delhi District Court
State vs Zishan on 5 June, 2025
IN THE COURT OF MS. TANIA SINGH
ADDITIONAL CHIEF JUDICIAL MAGISTRATE (CENTRAL DISTRICT),
TIS HAZARI COURTS, NEW DELHI
CNR No. DLCT020160932021
FIR No. 150/2021
State Vs. Zishan @ Dishan
PS: Hauz Qazi
U/s: 25 Arms Act
JUDGMENT
(a) CIS No. 10134/21
(b) Date of offence 28.06.2021
(c) Complainant SI Dharamvir
(d) Accused Zishan @ Dishan S/o Sh.
Mohd Haseem, R/o H. No.
5041, Lambi Gali, Seekri
Vala, Haus Qazi, Delhi
(e) Offence 25 Arms Act
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 25.08.2021
(I) Date when judgment was reserved 05.06.2025
(j) Date of judgment 05.06.2025
Brief Facts:-
1. It is the case of the prosecution that on 28.06.2021 ( hereinafter called the date of offence), the complainant along with HC Sunil and CT. Krishan were on patrolling duty and at about 03:00 p.m when they reached near Ajmeri Gate, Picket, Haus Qazi, Delhi, they saw one person, who State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 1 of 12 started escaping after seeing them. On suspicion, they apprehended him, whose name was later revealed as Zishan @ Dishan. The said person was on a motorcycle bearing no. DL6SAB3525. On query, he could not give any satisfactory answer regarding ownership of the said vehicle. On his personal search, a buttoned actuated knife was recovered from the left side pocket of pant worn by him at that time. During investigation, two other motorcycles were recovered at the instance of the accused which were found to be stolen in other FIRs and the respective IOs were informed accordingly.
2. After completion of investigation, charge sheet under section 25 Arms Act was filed before the court on 25.08.2021 and cognizance was taken. On 17.09.2021, charge was framed against the accused u/s 25 Arms Act, to which he pleaded not guilty and claimed Trial.
3. Vide separate statement recorded under Section 294 Cr. PC, accused had admitted FIR No. 150/2021 i.e. Ex. A-1, certificate u/s 65B Indian Evidence Act qua FIR i.e. Ex. A-2, DAD Notification dated 29.10.1980 i.e. Ex. A-3.
State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 2 of 12 THE TRIAL PROCEEDINGS:
4. To bring home the guilt of the accused, the prosecution examined three witnesses. Brief testimony of the witness is reproduced below:-
a.) PW-1 is SI Dharamvir who deposed that on the date of offence, he along with HC Sunil and Ct. Krishan were on patrolling duty and when they reached Ajmeri Gate Picket at around 03:00 PM they saw one person, who acted suspicious on seeing them. On suspicion, the said person was apprehended by them whose name was later revealed as Zishan @ Dishan. On his search, one buttoned actuated knife was recovered from the left side pocket of his lower. PW-1 had requested 4 to 5 person from the public to join the investigation but none had agreed. The said recovered knife was kept on a plain paper and sketch of the same was prepared which is Ex. PW1/A. The total length of the knife was 23.5 cm, length of the blade was 11 cm, breadth of the same was 2.4 cm. The length of the handle is 12.5 cm. Thereafter, the said knife was sealed with the seal of "AS". The same was seized vide seizure memo Ex.PW1/B. The motorcycle on which the accused was riding was also seized along with its keys as the accused could not give any satisfactory answer regarding its ownership, vide seizure memo Ex. PW1/C and Ex.PW1/D. PW1 had prepared rukka Ex.PW1/E and State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 3 of 12 handed the same to Ct. Krishan for registration of FIR. After some time, Ct Krishan along with IO/ASI Rajesh came to the spot to whom PW-1 handed over the accused as well as the recovered knife. IO had put the FIR no. and case particulars upon the seizure memo already prepared. PW1 had identified the case property produced before him which is Ex.P1.
During his cross examination, he admitted that the spot of apprehension was a crowded area as same is a market. However PW1 did not call any person form the market from nearby shopkeepers to join the proceedings of recovery and arrest at the spot. PW1 denied the suggestions of not arresting of the accused, recovery of knife from the possession of accused at spot or falsely implicating the accused or planting the case property.
b.) PW2/HC Krishan Pal deposed on similar lines as PW1 stating that on 28.06.2021 that he was on patrolling duty with PW1, accused was apprehended and a buttoned actuated knife was recovered from his possession and same was seized by PW1 vide seizure memo Ex.PW1/B. He further deposed that he had gone to the police station after taking rukka and returned with ASI Rajesh and copy of the FIR. Accused took them to Shah Ganj Chowk, Lahori Gate from where accused had pointed towards a State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 4 of 12 scooty bearing no. DL6SN2351. IO SI Rajesh had seized the said scooty vide seizure memo Ex.PW2/A. Thereafter, accused took them to Kundevala, Haus Qazi from where accused pointed towards a motorcycle bearing no. DL5SAC5804 which was seized by IO vide seizure memo Ex.PW2/B. IO had also prepared pointing out memos which are ExPW2/C and Ex.PW2/D. Accused was arrested vide arrest memo ExPW2/E, his personal search was conducted vide memo ExPW2/F and disclosure statement was recorded vide memo Ex.PW2/G. Thereafter, on returning to the PS the case property was deposited in mal khana.
During his cross examination, witness admitted that the spot is a public area and stated that IO requested 4-5 persons to join the investigation, however, none of them agreed. He further said that due to paucity of time, no written notice was given to the public persons. He denied the suggestions of falsely implicating the accused or planting the case property.
c.) PW-3 is the ASI Sunil Kumar who deposed that on the date of offence, he along with PW1 and PW2 were on patrolling duty. Accused was apprehended and a buttoned actuated knife was recovered from his possession which was seized by PW1 vide seizure memo Ex.PW1/A. He State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 5 of 12 further relied upon documents ExPW1/B, ExPW1/C, Ex.PW1/D, Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/E, Ex.PW2/F, and Ex.PW2/G and identified his signature on the aforesaid documents.
In his cross examination, PW3 admitted that they had not call any public person to witness the investigation.
d.) PW-4 is HC Ravinder Kumar who deposed on similar lines as PW1 and identified his signature on Ex.PW1/D, Ex.PW1/C and Ex.PW1/E. e.) PW-5 is ASI Rajesh who deposed that on 28.06.2021, the present case was marked to him for further investigation. He had reached the spot where he met with PW1, PW2 and PW4. The accused and the case property was handed over to him. He had prepared the site plan ExPW5/A. He had further prepared the site plan from where the recovery of both the motorcycles was effected which is Ex.PW5/B and Ex.PW5/C. PW5 had identified his signature on Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/E, Ex.PW2/F, and Ex.PW2/G.
5. Prosecution evidence was closed on 25.04.2025 and the State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 6 of 12 Statement of Accused (SA) under section 313 Cr.P.C. r/w section 281 Cr.P.C was recorded on 20.05.2025. Accused denied the allegations made against him in the chargesheet and by the prosecution witnesses. The accused chose not to lead DE.
FINAL ARGUMENTS:
6. As per the Ld. APP, the case is proved beyond reasonable doubt as the seizure, recovery, identification of accused and case property, has been proved and no motive has been explained by the accused for falsely implicating him. Per contra, the Ld. Counsel for the accused has pointed out the contradictions in the version of the prosecution witnesses and has questioned the non-service of notice on public witnesses and submits that it was the duty of the prosecution to explain these irregularities and since the same has not been done, the case is not proved beyond reasonable doubt. It is further argued that the previous involvement record of the accused was searched before his arrest in the present FIR as revealed in the said record.
7. The record has been thoroughly perused and respective submissions of the learned Assistant Public Prosecutor for the State and State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 7 of 12 learned Counsel for the accused have been considered. In order to determine the guilt of the accused, it has to be seen if the case is proved beyond reasonable doubt. Ld. Counsel for the accused has pointed out certain contradictions. These contradictions shall be examined and it shall be ascertained if they have generated a reasonable doubt in the case of the prosecution.
8. PW-1/ complainant has stated in his examination that he had seized the recovered knife in a pullanda and sealed the same with the seal 'AS'. There is no deposition to the effect if the seal was handed over to the accompanying police official. There is no seal handing memo or return memo on record. Moreover, the prosecution has not even explained if Pw-1, PW-2 and PW-3 offered themselves for search before searching the accused. In these circumstances, the defence of the accused that the case property has been planted seems to have some strength to it. As per the law laid down in the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty vs. State of Orissa, it has been held:-
''10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting the object State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 8 of 12 which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated''.
9. Next, the Ld. Counsel for the accused has questioned the non- joining of public persons at the time of recovery. As per the Ld. Counsel for the accused, the non-joining of public witness was deliberate as no proceedings were held at the spot and the case property is planted. On this premise, when testimony of PW-1, PW-2, PW -3 and PW -4 are considered, certain questions do arise which have not been explained by the prosecution. As per aforesaid prosecution witnesses spot as it was a crowded market area when the accused was apprehended. All the prosecution witnesses admit that no notice was served on any public witnesses. It is a well settled proposition of law that non-joining of public witness shrouds a doubt over the fairness of investigation by police. Section 100 (4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. This only ensures fairness in investigation but since the same has not been done in the present case and also because no document has been placed on record to State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 9 of 12 show if any sincere effort was made by the IO to make these witnesses join the investigation, it cannot be said that the investigation was fair and unimpeachable. At this stage, it is also relevant to mention the law laid down in paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
10. Though this Court is conscious of the fact that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696, but, in the present case, the mandatory requirement of joining the public witnesses has been conveniently ignored and it seems, deliberately no notice was served by the IO.
11. Section 25Arms Act reads as under:-
State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 10 of 12 Punishment for certain offences:- Whoever-
(a) manufacturers, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of Section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or [***]
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
12. In the case of Irfan Khan Vs State (NCT of Delhi), arising out of SLP(Crl.) No (s). 12510 of 2023 passed by Hon'ble Supreme Court of India, dated 03.12.2024, it is held that:-
"8. A bare perusal of the aforesaid conclusions as set out in the charge-sheet would indicate that there is no allegation whatsoever that the buttondar knife recovered from the appellant was in violation of any of the stipulations contained in the DAD Notification dated 29th October, 1980 which mandates that 'no person in the Union Territory of Delhi shall "manufacture, sale or possess for sale or test" spring actuated knives, gararidar knives, buttondar knives and other knives which open or close with any other mechanical device with a sharp edge blade of 7.62 cms, or more in length and 1.72 cms or more in breadth in the Union Territory of Delhi.'
9. The notification whereby, a buttondar knife having blade dimensions of 7.62 cms or more in length and 1.72 cms or more in breadth has been brought under the mischief of the Arms Act, would be applicable only when the recovered knife is meant for the 6specified reasons i.e., "manufacture, sale or possession for sale or test" as indicated in the DAD notification.
10. Manifestly, on going through the report under Section 173 CrPC, there is not even a whisper that the appellant's possession of the said buttondar knife was for any of the prohibited categories as indicated in the DAD Notification. Hence, the totality of the State Vs Zishan @ Dishan FIR No. 150/2021 PS Haus Qazi Page No. 11 of 12 evidence collected by the investigation officer is not sufficient to draw even a remote inference that by simply being found in possession of the buttondar knife, the appellant acted in violation of the DAD Notification".
13. In the present case as well, prosecution has failed to establish that the accused was in the possession of button actuated knife for the purpose of sale or test or any other prohibited categories as enumerated in the DAD notification dated 29.10.1980 which is Ex. A-3.
14. Thus, keeping the above discussion in mind, this Court has no hesitation in holding that the prosecution has failed to prove its case beyond reasonable doubt and the accused Zishan @ Dishan S/o Sh. Mohd Haseem is entitled to be exonerated of the charges against him. The accused is accordingly acquitted for the offence punishable under Section 25 Arms Act.
Digitally
Announced and Signed in the Open Court signed by
TANIA TANIA
Date:
SINGH
SINGH 2025.06.05
on 05th June, 2025 17:16:32
+0530
(TANIA SINGH)
Addl. Chief Judicial Magistrate-02
Central/Tis Hazari Courts/Delhi(A)
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