Delhi District Court
State vs . Shiv Charan Gupta & Ors on 29 November, 2018
IN THE COURT OF SH. GAGANDEEP JINDAL : MM09 : SOUTH EAST
DISTRICT : SAKET COURT : NEW DELHI
State vs. Shiv Charan Gupta & Ors
FIR NO. 399/2003
PS Defence Colony
U/s. 353/506 IPC and 22(3) of Drugs and Cosmetic Act
Date of Institution of Case : 08.01.2004
Judgment Reserved for : 16.11.2018
Date of Judgment : 29.11.2018
1. CIS NO. : 86180/2016
2. The date of offence : 21.08.2003
2. Name of the complainant : Sh. Atul Kumar Nasa, Drug Inspector
(Govt of Delhi)
15 Sham Nath Marg, New Delhi.
3. Name of the accused persons : 1. Shiv Charan Gupta @ Ajay, S/o
parentage & residential addresses late Sh. S.L. Gupta, R/o 824G/1
Sukhdev Nagar, PS K.M. Pur, New
Delhi;
2. Brij Mohan Gupta @ Anil, S/o late
Sh. S.L. Gupta, R/o 824G/1 Sukhdev
Nagar, PS K.M. Pur, New Delhi;
3. Devender Kumar Gupta, S/o late
Sh. S.L. Gupta, R/o 824G/1 Sukhdev
Nagar, PS K.M. Pur, New Delhi.
4. Offence complained of or proved : U/s. 353/506 IPC and 22(3) of
Drugs and Cosmetic Act
5. Plea of the accused persons : Pleaded not guilty and claimed trial
State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 1 of 13
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 29.11.2018
JUDGMENT
1 It is the case of the prosecution that on 21.08.2003, at about 4:30 PM at M/s Shiv Store Shop No.20, Defence Colony Market, New Delhi, accused Shiv Charan Gupta @ Vijay, Brij Mohan Gupta @ Anil and Devender Kumar Gupta used criminal force and assaulted the complainant Sh. Atul Kumar Nasa, Drug Inspector, Government of Delhi, who is a public servant while he was executing his duty who had come to the shop to verify the orders of suspension of license of M/s Shiv Stores. It is also alleged that the accused persons criminally intimated and threatened him with dire consequences if he dare to enter M/s Shiv Stores. It is also alleged that the accused persons did not provide any assistance and obstructed him from exercising the power conferred upon him and refused to produce any record, register and other documents.
2 After completion of investigation and necessary documentation, charge sheet was filed in the Court on 08.01.2004. Copy of the chargesheet was supplied to the accused persons. Vide order dated 14.10.2004, Charge u/s. 186/353/506/34 IPC and 22 (3) Drug and Cosmetic Act was framed against the accused persons to which they pleaded not guilty and claimed trial. 3 The accused persons have challenged the order of summoning them in the present case, in Hon'ble High Court of Delhi in Crl. Misc. No.266870/2006. The Hon'ble High Court of Delhi dated 03.10.2011 quashed the proceedings u/s 186 IPC and directed that criminal proceedings for the charge u/s 332/353/34 IPC State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 2 of 13 would continue. Thereafter, the accused persons filed an SLP in Hon'ble Supreme Court of India which was dismissed vide order dated 24.02.2012. 4 Therefore, the amended charge for the offence u/s 353/506 IPC and u/s 22 (3) of Drugs and Cosmetic Act was framed against the accused persons on 06.10.2012.
5 Prosecution has cited total 12 witnesses but had examined only following 11 witnesses.
5.1 PW1 HC Yudhbir deposed that on 21.08.2003 he was posted as Duty Officer in PS Defence Colony. At about 8:45 PM, Ct. Surender produced rukka sent by SI Dhani Ram. Thereupon he registered the present FIR Ex.PW1/A and made endorsement Ex.PW1/B. Copy of FIR and rukka was handed over to Ct. Surender.
5.2 PW1 K.T. Raghkumar deposed that on 21.08.2013, he received instructions from Drug Controller to go to medical store at shop no.20, Defence Colony Market, New Delhi. When he were there he met with A.K. Nasa, Drug Inspector who informed him that he was not allowed to inspect the premises and to check the relevant records. The accused persons did not allow them to inspect the premises at their request. Thereafter, Sh. A.K. Nasa made a call at number 100. Police officials requested the accused persons to inspect the premises but they again refused. PW1 K.T. Raghkumar failed to identify the accused persons at first instance but thereafter he identified only one accused namely Shiv Charan Gupta.
The said witness was cross examined by Ld. APP for state since he had not supported the case of prosecution. But even in his cross examination by Ld. APP for State he failed to identify other two accused persons. But had identified his signature on the arrest memo Ex.PW1/A State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 3 of 13 and Ex.PW1/B, personal search memo Ex.PW1/C. 5.3 PW2 Sh. Atul Kumar Nasa reiterated the facts in his complaint Ex.PW2/A. He relied upon the suspension order dated 05.08.2003, copy of drug license, office list of demarcation, office order dated 02.05.2003 Mark A to Mark F, letter dated 28.08.2003 Ex.PW2/B, another document mentioned in the Section of Drugs and Cosmetic Act, which was handed over to IO Ex.PW2/C, arrest memo and personal search memo of accused persons Ex.PW2/D to Ex.PW2/H. On 31.07.2018, PW2 Atul Kumar Nasa was again examined u/s 311 Cr.PC and he relied upon gazetted notification dated 21.01.1993 vide which he was notified as Inspector which is Ex.PW2/I, copy of office order number 1195 dated 02.05.2003 Ex.PW2/J vide which he was alloted head number 14, copy of site plan of shop no.20, Defence Colony Market, New Delhi Ex.PW2/K, partnership deed of M/s Shiv Store Ex.PW2/L, declaration form of M/s Shiv Store Ex.PW2/N. During his cross examination, he was confronted with document Mark F which was Ex.PW2/D1, copy of form no.19 and 19B Ex.PW2/D1, letter dated 21.08.2002 Ex.PW2/D2, copy of form 20B Ex.PW2/D3. 5.4 PW3 Sh. Sandeep Nangia deposed that 21.08.2003, he received a phone call from Sh. Atul Kumar Nasa that one chemist Shiv Store, Defence colony was not cooperative in inspection of records. He reached there within 20 minutes and requested accused persons namely Devender, Anil, Ajay to cooperate to show the records to them but they did not cooperate. Crowd gathered. Police also arrived at the spot. He identified accused Devender by name and accused Brij Mohan by face and failed to identify the third accused. He was also cross examined by Ld. APP for State and failed to identify accused Shiv Charan Gupta.
State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 4 of 135.5 PW4 Dinesh Boken deposed in the similar lines as of testimony of PW K.T. Raghukumar. He identified all the three accused persons. 5.6 PW5 HC Surender deposed that on 21.08.2003 after receiving DD No.51B he alongwith SI Dhani Ram reached at shop no.20 Defence Colony. There they met with Drug Inspector Atul Kumar Nasa who gave complaint to SI Dhani Ram. He went to PS Defence Colony for registration of FIR and came back at the spot after registration of FIR.
5.7 PW6 ASI Bali Ram deposed that on 26.08.2003, he alongwith Ct. Ganga Sharan, SI Dhani Ram and two drug inspectors reached at shop number 20. There they caught two accused persons red handed. He relied upon the arrest memo Ex.PW1/A and Ex.PW1/B. 5.8 PW7 Ct. Ganga Saran deposed in the similar lines as of testimony of PW6 ASI Bali Ram.
5.9 PW8 Sh. Dinesh Kumar, Record Clerk, Drug Controller Department, Shahdara produced the record and proved the drug license number 14 (868) Ex.PW8/A, form 20E Ex.PW8/B, order of suspension dated 05.08.2003 Ex.PW8/C. During his cross examination, he was confronted with letter dated 21.07.2003 Ex.PW8/X. 5.10 PW9 Retd. SI Dhani Ram is the IO of the present case. He deposed about the investigation conducted by him. He proved rukka Ex.PW9/A made on the complaint, site plan Ex.PW9/B prepared by him at the instance of Atul Kumar Nasa, arrests and personal search memos Ex.PW2/D to Ex.PW2/H, Ex.PW9/C and Ex.PW9/D. 5.11 PW10 Retd. SI Ram Nath deposed that after receiving of wireless message at about 5:34 PM on 21.08.2003, he alongwith other State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 5 of 13 PCR staff reached at shop number 20, Defence Colony Market, New Delhi where they met with Drug Inspector Atul Kumar Nasa who was not allowed to enter into the said shop. He failed to identify the accused persons even on crossexamination by Ld. APP for State. 6 After completion of prosecution evidence, all three accused persons were examined u/s 313 Cr.P.C. They have stated that they have been falsely implicated in the present case at the instance of members of trade union and officials of Drug Department.
7 Accused persons have examined Sh. Sudhakaran, Drug Inspector as DW1.
8 I have heard the arguments of Sh. Pravesh Vyas, Ld. APP for the State, Sh. Puneet Mittal, Senior Advocate for accused no.1 and 2, Sh. Puneet Dhawan, Ld. Counsel for accused no.3 and have gone through the case file.
9 Sh. Puneet Mittal, Senior Advocate for accused no.1 and 2 firstly contended that the evidence led by the prosecution prior to 06.10.2012 when amended charge was framed, cannot be considered by this court in view of order dated 24.02.2012 passed by Hon'ble Apex Court in Crl MP No.5267 of 2012.
10 Accused persons have challenged the order to summon them in the present case in Crl. MC No.266870/2006 in Hon'ble High Court of Delhi wherein they have prayed "set aside the order dated 31.01.2004 passed by Sh. S.K. Sharma, Ld. Metropolitan Magistrate and quashed the proceedings in the case title State Vs Shiv Kumar Gupta and & Ors pending in the court of Sh. Chander Sekhar, Ld. Metropolitan Magistrate" as mentioned in para number 1 of order dated 03.10.2011 passed by Hon'ble High Court of Delhi.
State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 6 of 1311 Vide order dated 08.05.2006, the proceedings of the present case were stayed by Hon'ble High Court of Delhi and vacated the said stay vide order dated 03.10.2011 at the time of disposal of above mentioned petition. The Hon'ble High Court of Delhi vide order dated 03.10.2011 quashed the proceedings u/s 186 IPC and directed that criminal proceedings for the charge u/s 332/353/34 IPC would continue. Thereafter, the accused persons filed an SLP in Hon'ble Supreme Court of India which was dismissed vide order dated 24.02.2012 which read as follows:
"Heard Ld. Senior Counsel for petitioners. Delay condoned. The special leave petition is dismissed. The question of law is left opened. The dismissal of special leave petition shall not prevent the petitioners from taking all such pleas as may be opened to them in law at the stage of framing of charges".
12 Section 217 Cr.PC provides that whenever a charge is altered or added to by the court after commencement of trial, the prosecution and accused shall be allowed to recall or resummon, and examine with reference to such alteration or addition any witness who may have been examined unless the court for the reasons to be recorded in writing consider that the prosecution or accused as the case may be desires to recall or to reexamine any such witness to delay and to defeat the justice. 13 The accused persons had challenged only the order of summoning then in the year 2006 despite the fact that charge for offence u/s 186/353/506/34 IPC had already been framed against them on 14.10.2004. The petitions filed by the accused persons in Hon'ble High Court of Delhi and Hon'ble Supreme Court of India are not the part of record. Therefore, it cannot be commented whether the accused persons have deliberately suppressed the fact of framing of notice on 14.10.2004. Moreover, no State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 7 of 13 fresh charge had been added nor any charge was amended at the time of framing of amended charge on 06.10.2012 rather one section 186 IPC was dropped from the earlier charges. Therefore, no prejudice has been caused to the accused persons by amendment of charge.
14 Thus, there was no need to recall or to resummon the witnesses who had already been examined and cross examined prior to 06.10.2012. Therefore, the court find no merit in the contention that the testimony of witnesses examined prior to 06.10.2012 cannot be considered. 15 Sh. Puneet Mittal, Senior Advocate further argued that PW1 K.T. Raghukumar, PW3 Sandeep Nangia did not support the case of prosecution. The evidence extracted by Sh. Pravesh Vyas, Ld. APP for the State during their crossexamination cannot be considered because the statement u/s 161 Cr.PC can be used only for contradiction and not for the purpose of corroboration.
16 In the case of Amar Bahadur Vs State, 2005 (5) AD (Delhi) 6, was observed by the Hon'ble High Court of Delhi "It is otherwise an established proposition of law that previous statement made by witness u/s 161 or 164 Cr.PC can only be used only for the purpose of dis crediting the witness or for contradicting a witness in order to discredit his/her testimony and not for the purpose of corroboration. In the case in hand the prosecution though sought permission of the court to cross examine the witness for the purpose of discrediting the witness, did not chose to put a single question to confront her with earlier statement and rather chosen an unusal easy path of getting conformation/affirmation of the previous statement made by the witness. It would not imply that the contents of complaining statement PW1/A would, ipso facto, become admissible as substantive piece of witness without the witness supporting the same. This court is, therefore, of the considered opinion that the statement made by PW1 in her deposition during the course of cross examination by public prosecutor cannot be considered as substantive piece of evidence and could not have been relied and acted by the trial court for recording the conviction against the accused."
17 Similarly, in the present case, the testimony PW1 K.T. State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 8 of 13 Raghukumar and PW3 Sandeep Nangia during the crossexamination by Sh. Pravesh Vyas, Ld. APP for the State cannot be considered in evidence. Moreover, PW1 K.T. Raghukumar deposed that he alone arrived at the spot at the instruction of Drug Controller. He did not depose that Sh. Dinesh Boken had also accompanied at that time, whereas as per the case of prosecution, he alongwith PW4 Dinesh Boken arrived at the spot. Further, he failed to identify the accused Brij Mohan Gupta and Devender Kumar Gupta in the court during his testimony. Similarly, PW3 Sandeep Nangia failed to identify accused Shiv Charan Gupta in view of these deficiencies and contradictions in the testimony of PW K.T. Raghukumar and PW Sandeep Nangia make them unreliable witnesses. 18 PW2 Sh. Atul Kumar Nasa deposed that the license of M/s Shiv Store was suspended for three days from 18.03.2018 to 20.08.2003. therefore on 21.08.2003 he reached at shop number 20 at Defence Colony Market to check whether sale of any drug was made during these three days or not. When he reached there he found three persons Anil, Devender and Ajay who started abusing him on seeing him and tried to push from the shop. He requested them to cooperate but they refused. One of them taken out the camera and shot at him and he switched off the light of the shop. Thereafter, he phoned to his office and requested for some of his colleagues to join him.
19 During his entire examination in chief, he did not depose that he had disclosed his identity to the accused persons that he is a Drug Inspector nor he had asked them orally or by giving them a written notice to produce the record. He just deposed that they started to abuse him on seeing him.
20 In his crossexamination, PW2 has categorically deposed that he State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 9 of 13 was frequent visitor in his area under Head no.14 for his official visit, despite this fact, he did not know any of the accused persons prior to 21.08.2003. He also admitted that on 21.08.2003 he was not aware which one of the accused was licensee or whether any of them was the licensee or not. He further admitted that occupants of the shop had never met him prior to 21.08.2003. Therefore, it is hard to believe that any ordinary prudent person would start to abuse some unknown person mere on seeing him. No ordinary person can identify any person as a public servant mere from his appearance without knowing his credentials. In these facts and circumstances of the present case also, it cannot be said that accused persons have prior knowledge that PW2 Atul Kumar Nasa is a public servant. Moreover, PW2 Atul Kumar Nasa had admitted that in the jurisdiction details under head number 14 mentioned Ex.PW2/D1, the Defence colony has not been mentioned as part of his jurisdiction, therefore, it is not proved that whether he had any jurisdiction as public servant /drug inspector to inspect the records of M/s Shiv Store situated at shop number 20, Defence Colony Market.
21 It is the admitted that as per the record of Drugs Department Sh. Lakshmi Narayan Gupta is the licensee and he got renewed the license of M/s Shiv Store. None of the accused persons were even the registered pharmacist in the record of Drugs Department. There is no evidence available on record that any of the accused persons were having the record of chemist shop at that time and they deliberately withheld the said record. Hence, it cannot be held that the accused persons have voluntarily assaulted a public servant to prevent him to discharge his public duty. 22 In his examination in chief, PW2 has deposed that all the three occupants of the shop started to abuse him on seeing him and tried to push State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 10 of 13 him out of the shop. But in the crossexamination, PW2 has deposed that when he had visited the said shop on 30.06.2003 Sh. Pawan Gupta, Person Incharge S/o L.N. Gupta was present at the spot. He further admitted that in the common premises in the front portion of the shop, there is a general store and the chemist shop is in the back portion. He made a voluntarily statement in his crossexamination that on 21.08.2003 one person was sitting at the chemist shop, he disclosed his identity to the said person and he started to abuse him and using filthy language. PW2 failed to disclose that which one of the three accused persons acted so. Rather his this statement in crossexamination is contradictory to the statement made in the examination in chief that all of three of them started to abuse him which raised doubt on his credibility. The incident of day time i.e. 4:30 PM and happened at busy market of Defence Colony. It is quite shocking that no other public person/owner/employee of adjoining shops did not witness the said incident. Complainant /PW2 has to call his colleagues and office bearers of trade union to witness the incident. 23 PW2 failed to elaborate what filthy language was used by the accused persons to threaten him. He had admitted that in his statement Ex.PW2/A or any other statement made to IO u/s 161 Cr.PC there is no mention of exact utterance of abuse/filthy language used by the occupants of the shop. It was incumbent to reproduced the specific words used by the accused persons to ascertain whether those words had really caused alarm to PW2 or not. Mere threat does not fall within the definition of criminal intimation u/s 506 IPC.
24 Ld. Senior Advocate for accused persons further argued that prosecution has failed to prove the identity of accused persons. He argued that complainant /PW2 has admitted that since it had been 15 years, State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 11 of 13 therefore, there was need to go thorough the complainant statement since he has not remembered the facts due to lapse of time. He had deposed in the court on basis of his complaint and statement as admitted by him in his crossexamination. He further argued that no Test Identification Parade was conducted during the investigation. The identification of accused persons by the complainant after lapse of 15 years for the first time in the court is the weak piece of evidence and cannot be relied upon specially when other witnesses had failed to identify the accused persons. Senior advocate relied upon the judgment in the case of Hem Singh Vs State of Harayana, 2009 (7) SCR 888.
25 In the present case, PW1 K. T. Raghukumar failed to identify accused Brij Mohan Gupta and Devender Kumar whereas PW3 Sandeep Nangia failed to identify accused Shiv Charan Gupta. In the FIR and testimony of star witness PW2, the accused persons had been referred as Anil, Devender and Ajay. PW2 did not disclose that accused no.1 Shiv Charan Gupta and accused no.2 Brij Mohan Gupta are also known as Anil and Ajay respectively. None of other witness has explained this puzzle of names of accused persons. PW3 deposed that he does not know that accused Shiv Charan Gupta is also known as Ajay and accused Brij Mohan Gupta is also known as Anil. Moreover, accused Shiv Charan Gupta and Brij Mohan Gupta has been arrested on 26.08.2003 whereas the incident of 21.08.2003. The arrest memo also bears the signature of PW2 Atul Kumar Nasa and arrest was made at shop number 20 Defence Colony Market, New Delhi. PW2 nowhere deposed that he had again visited the said shop on 26.08.2003 at the time of arrest of accused Shiv Charan Gupta and Brij Mohan Gupta. Nor he had deposed about when and where the arrest memos were signed by him.
State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 12 of 1326 PW6 and PW7 are also witnesses of arrest memo of accused no.1 Shiv Charan Gupta and accused no.2 Brij Mohan Gupta but they identified the accused Devender Kumar and Brij Mohan Gupta as Shiv Charan Gupta and Brij Mohan Gupta. PW10 Retd. SI Ram Nath was the incharge of PCR and was the first police official who had reached at the spot on the day of incident. He has also failed to identify the accused persons.
27 Thus, in view of above mentioned evidence, a doubt is cast upon the identity of accused persons. The identification of accused persons by the complainant for the first time in the court during his deposition after 15 years from the incident is a weak piece of evidence especially for the reasons: (a) when the names of accused persons is different as mentioned in the FIR and the testimony of complainant; (b) absence of any other evidence to show that accused Shiv Charan Gupta and Brij Mohan Gupta are also known as Ajay and Anil; and (c) complainant has admitted in his crossexamination that he did not remember the facts and has to go through the file before deposition.
28 In view of the above discussion, the court is of the considered opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubts, hence, accused Shiv Charan Gupta, Brij Mohan Gupta and Devender Kumar Gupta are acquitted for the offence u/s 353/506 IPC and 22(3) of Drugs and Cosmetic Act IPC.
Digitally signed by GAGANDEEP GAGANDEEP JINDAL
Announced in the open Court JINDAL Date: 2018.11.30
17:09:27 +0530
on 29.11.2018 (GAGANDEEP JINDAL)
MM09/SED/ND/29.11.2018
State Vs. Shiv Charan Gupta & Ors. CIS NO. 86180/2016 Page 13 of 13