Delhi District Court
State vs Rajesh Jain on 30 November, 2023
IN THE COURT OF SHRI ANUJ KUMAR SINGH
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02
CENTRAL DISTRICT AT TIS HAZARI COURTS, DELHI
CNR No.DLCT0202000832007
FIR No. 137/2005
PS: Bara Hindu Rao
State Vs. Rajesh Jain & Anr
U/s: 63/65 CR Act
JUDGMENT
(a) CIS No. 297879/16
(b) Date of offence 22.05.2005 and 14.07.2005
(c) Complainant Sh. M.A. Rehman
(d) Accused (1) Rajesh Jain S/o Late Sh. Ram
Chander Jain
(2) Ajay Jain S/o Late Sh. Ram
Chander Jain,
Both R/o H. No. 3985, Gali Ahiran
Bahadur Garh Road, Delhi.
(e) Offence 63/65 CR Act
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 28.11.2007
(I) Date when judgment 30.11.2023
was reserved
(j) Date of judgment 30.11.2023
1. Vide this judgment, this court shall dispose of the present case u/s 63/65 CR Act.
2. The case of the prosecution is that on 22.05.2005 at about 07:10pm, from the shop/godown bearing No. 4032, First Floor, FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 1 of 36 Gali, Ahiran Dheeraj, Delhi falling within the jurisdiction of PS Bara Hindu Rao, accused Rajesh Jain was found in possession of duplicate/spurious packets of 502 Pataka Biri and duplicate/spurious packets, wrappers and raw material meant for preparing abovesaid duplicate or infringed Biri and further recovery of the duplicate/spurious packets and wrappers of the Shiv Biri and Hawra Biri were also recovered which is Mark B from second floor of H. No. 260, Kucha Sanjogi Ram, Naya Bans, Delhi on 14.07.2005 which was jointly owned by him and accused Ajay and thereby tried for offence punishable u/s 63/65 Copyright Act and within cognizance of this Court.
Further on 14.07.2005, at time unknown at Second Floor, H. No. 260, Kucha Sanjogi Ram, Naya Bans, Delhi, both accused persons were found in possession of duplicate/spurious packets and wrappers of the Shiv Biri and Hawra Biri and thereby tried for offence punishable u/s 63/65 Copyright Act and within cognizance of this Court.
3. After investigation, charge sheet was filed against the accused persons in the Court. Copy of chargesheet and other scrutable documents were supplied to accused persons in compliance of Section 207 Cr. PC. Thereafter charge under Section 63/65 Copyright Act was framed against accused persons vide order dated 19.02.2015 to which they pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused persons, the prosecution examined thirteen witness.
FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 2 of 36
5. PW-1/M.A. Rehman deposed that he had been working as General Manager (Sales) in Pataka Industries Pvt. Ltd. from the year 1985 to 1st January 2013. He did not remember the exact date, month and year. However, he had given a complaint to police regarding manufacturing of fake/duplicate biris.
During cross examination by Ld. APP for State he deposed that he had given a complaint to Inspector IPR section, EOW (Crime Branch), New Delhi on 21.05.2005 regarding production of fake Biri in the name of his company brand i.e. Biri No. 502, Pataka in different parts of Delhi. His Complaint is Ex. PW1/A bearing his signatures at point A. It is also correct that on 21.05.2005, he had executed an authority letter in favour of Sh. S.K. Nowman S/o Late Alhaz Mohd. Farhad Ali to take necessary action against the accused persons who are engaged in selling/retaining/manufacturing of the fake companies brand i.e. Biri No. 502 Pataka. The authority letter is Ex. PW1/B bearing his signature at point A. During cross examination by Ld. Defence counsel, he deposed that it is correct that the name of the accused persons are mentioned in the complaint Ex. PW1/A. It is also correct that he was not aware about the persons who were involved in production of fake biri. It is also correct that the authority letter Ex. PW1/B also does not contain name of any accused persons. He denied the suggestion that neither he had given any complaint nor executed any authority letter. It is correct that he had not placed anything on record to show that Pataka Industries Pvt. Ltd. was producing and distributing Biri No. 502 Pataka. He FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 3 of 36 denied the suggestion that he deposed falsely.
6. PW-2/Habib Khan deposed that in the year 2005, he was working as Superintendent with Shiv Biri manufacturing company. His company received information that the fake and counterfeit products of the company is being sold at 4032, Pahari Dheeraj, Delhi. Accordingly, on 22.05.2005, he went to the police and filed the written complaint in this regard Ex. PW2/A bearing his signature at point A. Thereafter, raiding party was constituted consisting of himself and other police officials and they proceeded at 4032, Pahari Dheeraj where S.K. Nowman of Pataka Biri was already present. IO asked public persons to join the investigation however all of them left without disclosing their names and addresses. The premises was locked therefore the IO broke open the lock of 4032, Pahari Dheeraj and conducted the search. In the search, the counterfeit products i.e. 203 Shiv Biri and 502 Pataka Biri wrappers of his company were recovered. All the recovered articles were seized by the IO vide memo Ex. PW2/B bearing his signature at point A. Thereafter, on 14.07.2005, on the information of Mr. Rehman, Manager of 502 Pataka Biri that the counterfeit and fake products of 203 Shiv Biri were being sold/stored at Naya Bazar. They went to Naya Bazar for conducting search at 200 something at Naya Bazar (exact number could not recalled due to lapse of time). He correctly identified accused in the Court. The search of aforesaid premises was conducted in their presence and biri and wrappers of 203 Shiv Biri and other company were recovered and the same were seized by the IO vide memo Ex. PW2/C bearing his FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 4 of 36 signature at point A. On asking leading questions and putting certain documents to the witnesses by Ld. APP for State, he deposed that it is correct that the address of the place raided on 14.07.2005 was 260, Kucha Sanjogi Ram, Naya Bans, Delhi. It is correct that the name of accused present at the spot i.e. 260, Kucha Sanjogi Ram, Naya Bans, Delhi at the time of search and seizure of the recovered articles was Ajay Jain. It is correct that Tariq-Ul- Aslam, AR of Jahagir Biri, Gauri Shankar were present there. He cannot say whether the names of other persons were present there were Ashwani Tyagi AR of Hindustan Liver, Sant Ram AR of KTC Ltd. He cannot say whether 107 packets of 203 Shiv Biri (each packet containing 20 bundles) and 309 packets of Hawra Biri (each packet containing 20 bundles) were recovered. It is correct that he had identified the recovered 107 packets of 203 Shiv Biri were counterfeit. It is correct that the recovered articles were put in three gunny bags and sealed with the seal of NK and thereafter were deposited in the Malkhana of PS Bara Hindu Rao. The seal was handed over to one police official however he could not recall his name. It is correct that on 02.07.2005, he handed over the authority letter vide which he was authorized by Mohd. Asraful Alam, Manager Sales, Shiv Biri Mfg. Co. Pvt. Ltd. to take necessary action against the person involved in selling/manufacturing the counterfeit products of 203 Special Shiv Biri which is Ex. PW2/D bearing his signature at point A and attested copy of copyright registration certificate of 203 Special Shiv Biri which is marked X vide memo Ex. PW2/E bearing his signature at point A. It is correct that the photocopy FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 5 of 36 of election ID Card and ration card of Gauri Shankar were seized by the IO vide memo Ex. PW2/F bearing his signature at point A. Thereafter, SHO PS Bara Hindu Rao filed the reply alongwith copy of order dated 03.07.2015, passed by Sh. V.K. Gautam, Ld. Predecessor of this Court regarding confiscation of the case property of the present case, the same is Mark X, the inventory of case property Mark Y, bearing the entry of present case at S. No. 5, at point A to A and road certificate No. 52/21/15 dated 23.12.2015 Mark Z regarding sending of case property of the present case to District Nazir, bearing the entry of present case at S. No. 15, at point A to A. The photographs of the pullands of the case property taken at the time of sending the same to District Nazir and its panchnama is already on record. The photographs is Ex. P1 and the Panchnama is Mark A. The case property already released to accused vide order dated 20.09.2005 vide superdarinama Ex. PW2/G. During his cross examination he deposed that he did not know the name of any of the accused at the time of making complaint. He did not know the number of the shop where the raid was conducted. He volunteered that his some other associate was accompanying him for telling the address and location of the shop. The name of that associate was M.A. Rehman. M.A. Rehman was the employee of Pataka Biri and he was not employee of their company. M.A. Rehman was already present at the spot and he was called there. He did not remember the date of calling him by M.A. Rehman at the spot but it was in the year 2005. He did not remember whether the aforesaid reaching of the spot by him relates to the first date given in his examination in FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 6 of 36 chief or the second date. He was not aware of the address or the number of the property where the raid was conducted at the first instance. He was pointed out the same by M.A. Rehman. The articles recovered were lying on the road. He had not seen the articles lying in any property which were recovered at the time of raid. He had signed the complaint at the instance of MA Rehman and he did not know anything else. It is correct that lock of property bearing No. 4032, Pahari Dhiraj was not broken in his presence. The recovered articles were neither seized nor sealed in his presence on both the dates. It is correct that he had not inspected any article present there and had not stated to anyone about their genuineness. It is correct that he had signed all the papers at the instance of M.A. Rehman and IO and he did not have personal knowledge about the same. He denied the suggestion that he deposed falsely.
7. PW-3/ASI Rajesh Kumar deposed that he produced register No. 19 in connection to the present case. The case property was received as per entry No. 1413/05 dated 22.05.2005. The case property remained in the police station till 06.10.2005 when the case property including 22 gunny bags were released on superdari to the complainant. Copy of the same is Ex. PW3/A. The case property including other items deposited in the Malkhana in the present case was delivered to District Nazir as per the aforesaid order Ex. PW3/A. The case property was delivered after making panchnama in this regard which is already Mark A and photographs taken thereon is already Ex. PX1 as per record. The case property was delivered to District Nazir vide FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 7 of 36 road certificate which is already Mark Z and entry made therein at point A. The case property was received in Malkhana vide aforementioned entry i.e. 1413/05 dated 22.05.2005 and another entry vide entry No. 1473/05 dated 14.07.2005 in register no. 19 which is Ex. PW3/B(colly). As per record, there is no case property in connection with the present case lying the malkhana of PS BHR after releasing and delivering the case property to the superdar and District Nazir respectively.
During his cross examination by Ld. defence counsel, he deposed that it is correct that there is no mention of presence of seal and seal mark on the case property in the prepared panchnama Mark A. It is correct that there is no mention of any seal mark on the case property in the road certificate Mark Z. It is correct that the application already Mark Y was moved on behalf of Inspector (Investigation) and MHC (M) PS Bara Hindu Rao wherein there is no mentioning of any seal or mark on the case property thereof. He denied the suggestion that there is no mention of seal because the case property was handed over by way of the road certificate was not one which was seized in this case. It is correct that in Mark A, Y and Z there is no mention of the quantity of Biri handed over by way of road certificate except mentioning of two pullandas containing lock's seal in Mark A. It is correct that there is no mention of the quantity and contents of pullandas on the pullandas in the photographs Ex. PX1. It is correct that in Ex. PW3/B the seizure memo has been copied in column No. 4. He volunteered that the same is not recorded in his handwriting and he had not seen the seizure memo as he was not posted in PS Bara Hindu Rao at that time. He denied the FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 8 of 36 suggestion that the case property was not deposited in the malkhana at the time of the making entry as per Ex. PW3/B. He denied that suggestion that entry as per Ex. PW3/B was made only at the instructions of IO. It is correct that there is no specific mention in column 6, 7 and 8 against entry No. 1473/05 dated 23.12.2015 in register no. 19 about the quantity and particulars of property deposited with the District Nazir. He denied the suggestion that no article was ever deposited with District Nazir or that no article had ever been seized in this case. He denied the suggestion that he deposed falsely.
On re-examination by Ld. APP for State, he deposed that he cannot say that in Ex. PW3/B the seizure memo had been copied in column No. 4 as he had not seen the seizure memo and he was not posted in the PS Bara Hindu Rao at the time of depositing the case property in the Malkhana. The mentioning in column 6, 7 and 8 against entry No. 1473/05 dated 23.12.2015 in register No. 19 means that all the property mentioned in column No. 4 had been sent to District Nazir.
On re-cross examination by Ld. defence counsel, he deposed that it is correct that against entry No. 1473/05 dated 23.12.2015 in register No. 19 at point B in Ex. PW3/B, there is no mention that the articles deposited with District Nazir were same as mentioned in column No. 4. He denied the suggestion that the articles said to be deposited with District Nazir were not out of the particulars mentioned in column No. 4. He denied the suggestion that he deposed falsely.
8. PW-4/Retd. SI Ram Kishan deposed that on 22.05.2005 FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 9 of 36 at 07:45pm, a rukka was received by him through Ct. Rajbir sent by IO for getting the case registered. On the basis of rukka he registered the case FIR No. 137/05 which is a carbon copy. One original copy of the same has been placed in the FIR register which is Ex. PW4/A. The copy of FIR alongwith original rukka was handed over to Ct. Rajbir to hand over the same to IO for further investigation. He also made endorsement on original rukka which is Ex. PW4/B bearing his signature at point A.
9. PW-5/Tariq Ul Aslam deposed that in the year 2005 he was working with Jahangir Biri Pvt. Ltd. as Supervisor. On 22.05.2005, he got an information from the police that duplicate Biri are found in Pahari Dheeraj Area, Delhi. After that he reached at PS Bara Hindu Rao. The police official told him that fake and duplicate biris were recovered of the other brands also. In total 309 packets of fake biris of Hawrah Biris were also recovered. Each packet consists of 20 pouches of Biris. He identified the biris and told to the IO that the said recovered biris bearing the duplicate pouches and packets of our Hawrah Biris. Police told him that the said biris were recovered from Rajesh Jain and Ajay Jain. He did not remember what happened after that.
During cross examination by Ld. APP for State, he deposed that he did not visit the place from where the fake and duplicate Biris were recovered. After getting the information first he visited H. No. 260. He did not see any of the accused person at the spot of recovery at H. No. 260. After recovery of all the fake and duplicate biris, the police brought all the recovered articles at FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 10 of 36 PS without wrap. He did not remember whether seal was put on recovered articles. He did not meet Gauri Shankar at the spot or at police station. He did not know who was the owner of H. No. 260, Pahari Dheeraj. He deposed that he cannot identify accused Rajesh Jain and Ajay Jain. He denied the contents from point A to A1 of Mark A. He denied the suggestion that accused Ajay Jain and Rajesh Jain told to police that they were engaged in the business of fake and duplicate biris. He did not remember whether seal of NK was put on the seized articles. He denied the suggestion that Gauri Shankar was the owner of the said house and he gave the said premises on rent to Ajay Jain. He identified his signatures at point B & C on Ex. PW2/C. He did not remember where the Ex. PW2/C was prepared and it may have been prepared in police post. He identified his signature at point B on Ex. PW2/F. He did not remember where the Ex. PW2/F was prepared. Case property is already Ex. P1. He denied the suggestion that accused Ajay Jain and Rajesh Jain were also present at H. No. 260. He denied the suggestion that he deliberately not identifying the accused persons. He denied the suggestion that seal of NK was put on the seized articles. He denied the suggestion that he deposed falsely.
During cross examination by Ld. defence counsel, he denied the suggestion that there was/is no house bearing No. 260, Pahari Dheeraj. He denied the suggestion that he never visited H. No. 260. He denied the suggestion that he deposed falsely.
10. PW-6/Ashwani Tyagi deposed that on 14.07.2005 he was working as AR of HUL. On that day, he went to office of IPR FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 11 of 36 where he met IO and he told that accused Ajay has already been arrested. Accused Ajay Jain took them to 2601, Kucha Sanjogiram, Naya Bans, Delhi from where spurious articles of HUL and other companies were recovered. From the said premises, 119 kg of Wheel Active Packaging material and biri of 502 Pataka, Hawrah, Shiv were also found. He kept them in pullandas and sealed with the seal of NK. The other ARs were also called by IO and they identified the articles of their respective companies and confirmed they were spurious articles. IO seized the pullandas vide seizure memo already Ex. PW2/C bearing his signature at point C. IO recorded his statement. The case property is Ex. P1 (colly.), the photograph is Ex. PX1 and panchnama is already Mark A. During his cross examination by Ld. defence counsel, he met accused Ajay Jain on 14.07.2005 in the office of IPR. Accused Ajay Jain had taken them to 2601, Kucha Sanjogiram, Naya Bans, Delhi. Apart from IO, he did not remember how many other persons were accompanying them in the raid. They went to spot by car. He did not remember the time. The spot was on the second floor at the said address and it was a room and locked. The room was opened by the landlord who was also called by the IO. 107 packets of Shiv Biri and 309 packets of 502 Pataka Biri were seized by the IO and all the articles were kept inside the said room. He did not know the name of landlord of the said premises. He did not remember whether the gate of the room was of wooden or made of iron. The articles/biri were recovered from gunny bags. He did not remember if the gunny bags were branded. The Wheel packets were in gunny bags and FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 12 of 36 same were counted by the IO. He did not remember who counted the packets of Wheel Active but the same was done at the behest of IO. The seizure memos were prepared at the spot. He did not know who else had signed the seizure memos. His statement u/s 161 Cr. PC was recorded at the spot by IO. The products of Howra Biri, Pataka Biri, Shiv Biri were also counted by the IO. Accused Rajesh was not present at the spot at that time. IO sealed the case property in his presence. He did not remember if IO handed over seal of NK after use to somebody else. He did not remember how IO took case property to the Police Station. However, he reached the spot in his own vehicle and IO and other staff reached in other vehicles. They reached the spot simultaneously. He did not remember if spot of recovery was surrounded by other rooms. He denied the suggestion that he never visited the office of IPR and directly reached the spot or that accused Ajay had not joined them in the office of IPR. He denied the suggestion that he deposed falsely or that he did not accompany the IO at the time of raid.
11. PW-7/S.K. Nowman deposed that in the year 2005, he was working with Pataka Industries Pvt. Ltd. Authority letter in his favour issued by M.A. Rehman is already Ex. PW1/B bearing his signature at point B. On 22.05.2015, again said on 22.05.2005, he alongwith M.A. Rehman went to Pahari Dheeraj, Azad Market at premises No. 4032, First Floor, where they saw that work of biri packing was going on. 99000 packaging papers (Jhilli) were recovered having similar label of their company i.e. Pataka 502. 7500 wrappers in which 25 Biri each 20 bundles can FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 13 of 36 be packed were also recovered. 35 packets of biri containing 500 biris were also recovered. All above said articles were infringed articles of their company. Some other products were also recovered from above said premises which was of Shiv biri. Habib Khan from Shiv Biri also came and identified the products of his company.
On asking leading question from the witness by Ld. APP for State, he deposed that it is correct that on that day they reached the area at about 07:10pm. He did not remember if IO asked public person to join the raiding team. He did not remember whether the premises No. 4032, First Floor, Gali Ahiran, Pahari Dheeraj was locked or not. He did not remember whether on inquiry it was revealed that the said portion belongs to accused Rajesh Jain. He did not remember if IO again asked 5- 6 public persons to join the raiding team. He did not remember if one Sh. Harish also refused to join the raiding team stating that accused Rajesh Jain and his brother are respectable persons of the area and he cannot go against them. He did not remember anything else.
During cross examination by Ld. APP for State after resiling the witness from his previous statement, he denied the suggestion that they broke open the door of the godown of accused Rajesh Jain on the direction of Inspector Mahesh Kumar. It is correct that they saw huge quantity of 502 Pataka Biri as well as 203 Shiv Biri and IO informed the office of Shiv Biri Manufacturing Company Ltd. He did not know how many packets of Shiv Biri were recovered. It is correct that IO kept the recovered articles in separate bags and sealed the same with the FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 14 of 36 seal of VJS. It is correct that IO after sealing the case property seized the same vide seizure memo already Ex. PW2/B bearing his signature at point B on first, second and last page. The case property is already Ex. P1. It is correct that he could not tell the complete facts of the case due to lapse of time.
During his cross examination by Ld. defence counsel, he deposed that they reached at the said premises, the accused persons were found present there. He did not tell them the purpose of their visit. He volunteered that Mr. Rehman told them about the purpose of their visit. They remained at the site for about one hour. He did not know as to which papers were prepared by the police at the site during their stay there. He signed on 3-4 papers/documents. He could not say as to what was written on those papers. He did not remember whether Mr. Rehman or anybody else took any photographs at the said premises during their raid/stay. He did not remember whether any photograph of the accused persons alongwith the articles recovered were taken or not. He did not remember if IO collected any document which show that the spot belong to accused persons. He did not remember whether the IO kept the seal himself or handed it over to somebody else. He denied the suggestion that he did not accompany the raiding party on the said date. He denied the suggestion that the alleged articles did not belong to the accused persons. He denied the suggestion that the accused persons were not in possession of the raided site on that day. He denied the suggestion that no public person was asked to join the raiding party in his presence. He denied the suggestion that the officials from Shiv Biri was not present at the FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 15 of 36 site in his presence. He had left early so he cannot say whether the accused persons were arrested by the police or not. He volunteered that Mr. Rehman may be knowing about the same. He denied the suggestion that he deposed falsely.
12. PW-8/Gauri Shankar deposed that in the year 2005, he had given the second floor of his house on rent to accused Ajay Jain for rent of Rs. 1500/- per month. There was no written agreement between him and accused. In the month of July 2005, police officials came alongwith accused Ajay Jain and he identified accused Ajay Jain to be the person to whom he had given his premises on rent. He correctly identified accused in the court. IO checked the said room and it was found locked. IO got open the said room and from the room biris and tea leaves were recovered. Police has taken away the said articles vide seizure memo already Ex. PW2/C bearing his signature at point D. On asking leading question from the witness by Ld. APP for State, he deposed that he did not remember whether the biri recovered were of Howrah Brand and Shiv biri brand. He did not remember whether the IO seized the case property with the seal of NK. He denied the suggestion that the recovered biris were of Howrah brand and Shiv brand. The case property is already Ex. PX1 and P1 (colly).
During his cross examination by Ld. defence counsel, he deposed that there was no rent agreement nor any rent receipt executed by the accused Ajay Jain. There was no electricity bill or telephone bill in the name of the accused Ajay Jain. He did not conduct the police verification of the tenant Ajay Jain. He denied FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 16 of 36 the suggestion that the said premises was never let out to Ajay Jain or that there is no document only because of that reason. He cannot identify the biris or tea leaves recovered from the said premises, if shown to him today. There are four room on the second floor of the property from where the said recovery took place. He had given only one room to rent to accused Ajay Jain. He did not tell the name of the servant of Ajay Jain in his statement to the IO. He did not tell the IO that the articles recovered belonged to Ajay Jain. He did not produce any evidence/witness to the IO in support of the tenancy of Ajay Jain in respect of the said room in his property. He denied the suggestion that there was no witness/evidence because the said room had never been let out to accused Ajay Jain. He denied the suggestion that Ajay Jain never remained in possession/occupation of any room of his property. He did not know what was written on the paper Ex. PW2/C bearing his signatures. He volunteered that he is illiterate. IO did not tell him as to what was written in Ex. PW2/C before his signatures were taken on the same. He did not remember whether his signatures were taken on blank papers. He denied the suggestion that no such document was ever signed/prepared by him at his property. It is correct that his signatures were taken on the said paper at the police station. He denied the suggestion that no recovery of tea leaves/biri took place in his presence or that the accused Ajay Jain was never brought to his property by the police officials or that he was called at the police station or that only there a false story was concocted and he was tutored by the IO. He denied the suggestion that he deposed falsely.
FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 17 of 36
13. PW-9/Vinod Kumar Sharma deposed that he was having work of dye material. He had a house having No. 4032, Gali Ahiran, Pahari Dheeraj, Delhi. He had sold first floor right portion of 4032, Gali Ahiran to accused Rajesh Jain and said sell was through registered sale deed. The sale deed was executed prior to year 2005. The documents related to registration was in possession of Sh. Rajesh Jain. The premises was sold for residential purpose as it was used previously. He was not residing at 4032, Gali Ahiran therefore he was not aware if accused Rajesh Jain used to visit the said premises. He correctly identified accused Rajesh Jain in the court.
14. PW-10/Retd. SI Samraj deposed that on 15.07.2005, he was posted as HC with IPR Section, Crime Branch, Delhi. On that day, IO interrogated accused Ajay Jain and recorded his disclosure statement which is Ex. PW10/A bearing his signature at point A. He correctly identified accused Ajay Jain in the Court. During investigation, IO also recorded disclosure statement of accused Rajesh Jain which is Ex. PW10/B bearing his signature at point A. IO also recorded supplement disclosure statement of accused Rajesh Jain which is Ex. PW10/C bearing his signature at point A. He correctly identified accused Rajesh Jain in the Court. IO also handed over seal of NK to him and IO prepared seal handing over memo which is Ex. PW10/D bearing his signature at point A. IO arrested accused Rajesh Jain which is Ex. PW10/E bearing his signature at point A. Personal search of accused Rajesh Jain was conducted vide memo Ex. PW10/F FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 18 of 36 bearing his signature at point A. During investigation, IO had also seized documents from complainant vide seizure memo already Ex. PW2/E bearing his signature at point B. IO recorded his statements.
During his cross examination by Ld. defence counsel, he deposed that the disclosure statement of accused Rajesh Jain was recorded on 30.07.2005 at office of IPR/EOW. He did not remember as to who else signed the said disclosure statement either before him or after him on the same date. At the time of disclosure of accused Rajesh Jain, he, SI Neeraj and accused Rajesh Jain were present and none else were present. The disclosure statement of accused Ajay Jain was recorded on 15.07.2005 at office of IPR/EOW. He did not remember as to who else signed the said disclosure statement either before him or after him on the same date. At the time of disclosure of accused Ajay Jain, he, SI Neeraj and accused Ajay Jain were present and none elase were present. He denied the suggestion that one of the said disclosure statements were recorded in his presence or that his signature were taken by the IO later on in the absence of accused persons i.e. Ajay Jain and Rajesh Jain or that he made this statement at the behest of police officials. He did not remember as to what papers were produced by the officials of the company or seized by the IO in his presence. He denied the suggestion that no document was produced or seized in his presence or that his signatures were taken on the seizure memo in the absence of the official of the company at a later stage or that he made this statement at the behest of police. The memos he had signed were in the handwriting of IO SI Neeraj Kumar. He FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 19 of 36 denied the suggestion that he deposed falsely.
15. PW-11/SI Rajbir deposed that on 22.05.2005, he was posted as Ct. with IPR Section and was present in the office of IPR, EOW. On that day, he handed over him one rukka at about 05:55pm for registration of FIR. He took the same to PS BHR and after registration of FIR he returned to first floor, H. No. 4032, Gali Ahiran, Pahari Dheeraj, Delhi and handed over the original rukka and copy of FIR to IO.
During his cross examination by Ld. defence counsel, he deposed that he reached at spot at about 09:00pm alongwith rukka and FIR. It is correct that he was not the part of recovery team and no recovery was effected in his presence. He was standing outside of the building at the gate. He denied the suggestion neither he took rukka nor he returned to spot with the same and handed over to the IO. Some writing work was being done by the IO before his leaving with the rukka and after he had reached alongwith copy of FIR and rukka but he did not know as to what writing work was done by IO. He denied the suggestion that he deposed falsely.
16. PW-12/Retd. SI Sukhpal Rathi deposed that on 22.05.2005, he was posted as HC with IPR Section, EOW, Delhi. On that day, at about 06:00pm, he alongwith IO and other staff members left office of EOW and reached Bara Tuti Chowk at about 07:10pm. IO requested 4-5 public persons to join the investigation and recovery proceedings but none agreed and left the spot without disclosing their names and addresses. Due to paucity of time, no notice could be served to those public FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 20 of 36 persons. Thereafter, IO told the purpose to them as they have to conduct raid at the instance of AR of complainant company. Thereafter, they went to premises No. 4032, First Floor, Gali Ahiran, Pahari Dheeraj where the premises was found locked. IO came to know that said premises belong to Rajesh Jain S/o Sh. Ram Chander Jain R/o 3985, Gali Ahiran, Pahari Dheeraj. Thereafter, they reached at premises No. 3985 and the said premises also found locked. IO requested 4-5 public persons to join the investigation and recovery proceedings but none agreed and left the spot without disclosing their names and addresses. Due to paucity of time, no notice could be served those public persons. Thereafter, IO met two persons namely Harish and Mahavir R/o 4010, Gali Ahiran, Pahari Dheeraj who told IO that Rajesh Jain is dangerous person and no one will speak against him. Thereafter, they again reached premises No. 4032, Gali Ahiran, Pahari Dheeraj where on the watch of Inspector Mahesh, IO broke open the lock of said premises and they entered in the said premises. Search was conducted and S. K. Nowman identified various articles i.e. packaging material, wrappers, biris of complainant company as well as other companies to be spurious/fake/counterfeit. IO kept the same in sacks and sealed with the seal of VJS. IO seized the same vide seizure memo already Ex. PW2/B bearing his signature at point C. Thereafter, IO seized the said broken lock. IO handed over seal to him after use. IO deposited the case property in the Malkhana of PS BHR. Thereafter, they returned to office of EOW and IO recorded his statement. He correctly identified the case property already Ex. P1 (colly).
FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 21 of 36 During his cross examination by Ld. defence counsel, he deposed that the IO did not record any statement of Harish and Mahavir Prasad in his presence. Harish and Mahavir Prasad had not disclosed about any case or involvement of Rajesh Jain. IO did not enquire from any person apart from Harish and Mahavir regarding the character of Rajesh Jain. He returned the seal of the IO after deposit of case property in the malkhana on the same date. IO did not inform any higher official (besides Insp. Mahesh) regarding the proceedings of breaking of lock at the property No. 4032 nor any paper was prepared before breaking the lock regarding the said proceeding. It is correct that in the neighbourhood of the property No. 4032, there are several houses, shops and offices and it is congested place. IO did not ask any neighbour of the said premises to join the investigation/raid in his presence. They remained at the spot till about 10:30-10:45pm on that day. IO did not record any statement in presence of any witness to the effect that the property No. 4032 was belonging to Rajesh Jain nor any document was collected qua the same. He denied the suggestion that the premises No. 4032 was not belonging to Rajesh Jain and his name had been mentioned at the behest of the IO only. No document showing accused Rajesh Jain being in possession of premises No. 4032 were found inside the said premises during the raid. No document was collected in his presence by the IO which shows that the recovered articles belong to accused Rajesh Jain. No photographs/videography of the raid/recovery was conducted by the IO or at his instance in his presence. He denied the suggestion that neither he visited the spot nor any FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 22 of 36 proceedings took place in his presence. He denied the suggestion that he had signed the memos while sitting in the office of EOW. He denied the suggestion that no raid was conducted. He denied the suggestion that he deposed falsely.
17. PW-13/Santram Prajapati deposed that at the time of incident, he was working as Manager at KTC Pvt. Ltd. Some police officials from the concerned police station contacted him and informed about the seizure of some packets of Ghari Detergent Powder at Bara Hindu Rao. Thereafter, he visited the police station and met IO and observed at around 107 packets of Shiv Biri and 305 packets of Hawra Biri. The IO seized the above said packets in his presence vide seizure memo already Ex. PW2/C bearing his signature at point E. The same were taken into possession by the IO and sealed the same. Some other employees of the company were also present there alongwith police officials. Witness correctly identified the case property through photographs already Ex. P1. IO recorded his statement.
During his cross examination by Ld. defence counsel, he deposed that the day of incident was 14.07.2005. He received the phone call from the police official at about 03:00-04:00pm. He left the place after getting his statement recorded with the IO at about 05:00/06:00pm. He volunteered that it could be 07:00pm also. He remained at the spot for about 1-2 hours. When he reached the spot, the police officials had already recovered the above mentioned material. He did not remember the address of the site where he had gone at the making of the police official. It was on the ground floor. In his presence, the IO did not recover FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 23 of 36 any document relating to the ownership/possession of the property where the said proceedings were being conducted at Bara Hindu Rao. In his presence, nobody pointed out any distinguishing mark to ascertain the genuineness of the articles recovered on that day. He signed only one seizure memo. He did not remember as to who else also signed the said seizure memo. He denied the suggestion that he did not sign any paper at the site or that he did not go to the alleged site on the said day or that his signatures were taken while sitting at the police station. He denied the suggestion that nothing was seized/sealed in his presence. He did not remember correctly but as per his memory Bharat Sarkar was written on the seal. He denied the suggestion that no such seal was put in his presence. Though he reside at Kanpur but he denied the suggestion that he was at Kanpur on that day. He could not tell as to how many persons from other company were present at the site on that day nor can he tell their names. He denied the suggestion that he was never a part of any such investigation or that he deposed falsely at the behest of the police officials.
18. The prosecution evidence was closed vide order dated 04.11.2023 and statement of accused persons was recorded vide order dated 09.11.2023 wherein they pleaded innocence and opted not to lead defence evidence.
19. I have heard the arguments addressed by Sh. Vishal Gupta, Ld. APP for state and Sh. S.D. Dixit, Ld. Counsel for accused and carefully perused the documents on record.
FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 24 of 36
20. Settled proposition of criminal laws are:-
(1) Prosecution is required to prove its case on judicial file beyond all reasonable doubt by leading reliable, cogent and convincing evidence. (2) Prosecution case needs to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. (3) Burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and it never shifts to the accused. (4) Accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
21. Law relating to the copyright are as follows:-
S.63 of The Copyright Act- Offence of infringement of copyright or other rights conferred by this Act- Any person who knowingly infringes or abets the infringement of-
(a) the copyright in a work, or
(b) any other right conferred by this Act, [expect the right conferred by section 53A] [shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that [where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.] S51 When Copyright infringed- Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted of of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or [(ii) permits for profit any place to be used for the communication of FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 25 of 36 the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright;
or]
(b) when any person -
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports 2[***] into India, any infringing copies of the work :
3 [provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.] Explanation- For the purpose of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".
22. The position of the law in this regard has been well established in case titled as "Fateh Singh Mehta Vs. O.P Singhal, AIR 1990 Raj 8, wherein it has been held :-
"Copyright in a work is deemed to be infringed when any person, without a license granted by the owner of the copyright does anything, which is the exclusive right to do conferred by the Act upon the owner of the copyright. Where a person has copyright in a literary work, and any other person produces or reproduces the work or any substantial part thereof in any material form, he is committing an infringement of copyright".
23. It has been further held in R.G Anand V. Delux Films, AIR 1978 SC 1613 that :-
"It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblances with the original in a large measure is sufficient to indicate that it is a copy."
24. As far as the test to determine infringement of the FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 26 of 36 Copyright is concerned, it has been held in case titled as R.G. Anand V. M/s. Delux Films, AIR 1978 SC 1613 that :-
"One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original."
25. Primary question to be determined is whether the case property was recovered from the possession of the accused persons namely Ajay Jain and Rajesh Jain and whether recovered articles were duplicate/spurious articles. The case of the prosecution is that in pursuance of the complaint filed by Sh. S.K. Nowman, AR of Pataka Industries a raid was conducted on 22.05.2005 at premise 4032, First Floor, Gali Ahiran, Pahari Dheeraj, Delhi. Premise was found locked and door was broken opened on the direction of Inspection Mahesh Kumar and large quantity of Pataka 502 Biri, Special Shiv Biri No. 203 and raw biri was found lying and search of premise godown was conducted in the presence of complainant Sh. S.K. Nowman. When S.K. Nowman appeared before this court to depose on 27.02.2021, he stated that when he went to the premises i.e. 4032, First Floor, Gali Ahiran, Pahari Dheeraj, Delhi he found that work of biri packaging was going on. He denied the suggestion of Ld. APP for State that the door was broke open. Similarly, for the recovery at 260, Kucha Sanjogi Ram, Naya Bans, Delhi it is stated in the chargesheet/police report that authorized representative of Jahangir Biri Factory namely Tariq- Ul- Islam was present at the spot. However, in his testimony FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 27 of 36 dated 27.01.2018, he denied to visit the place from where fake/duplicate biris were recovered and he did not identify accused Rajesh Jain and Ajay Jain in the Court. Prosecution witness Habib Khan representative of Shiv Biri deposed that he did not know the number of shop or house where the raid was conducted. He also deposed that recovered articles were lying on the road and he had not seen the articles lying in any property which were recovered at the time of raid and also stated that lock of property bearing 4032 was not broken in his presence and further stated that recovered articles neither seized nor sealed in his presence. He also stated that he had not inspected the articles and had not stated anyone about their genuineness. Similarly, PW-1/M.A. Rehman deposed that he had not placed anything on record to show that Pataka Industries Pvt. Ltd. was producing and distributing biri No. 502 Pataka. Similarly, PW-8/Gauri Shankar deposed that no rent agreement or any rent receipt was executed regarding tenancy of accused Ajay Jain and further deposed that no police verification of accused Ajay Jain was got done by him. He deposed that he did not tell IO that recovered articles belong to accused Ajay Jain. There are material contradiction in the testimony of the prosecution witnesses which cast doubt upon the story of recovery of duplicate/spurious products from premises 4032, First Floor, Gali Ahiran, Pahari Dheeraj, Delhi and 260, Kucha Sanjogi Ram, Naya Bans, Delhi.
26. Raid was conducted in a residential accommodation. Locality is also densely populated. IO did not make any effort to make independent witness except noting the name of two persons FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 28 of 36 namely Harsh and Mahavir Prasad. In the present case, admittedly, the recovery has not been made from the accused persons but it was made from the premise 4032, First Floor, Gali Ahiran, Pahari Dheeraj, Delhi and 260 Kucha Sanjogi Ram, Naya Bans, Delhi.
27. Even if alleged recovery is believed for the sake of argument, even then no expert was examined by the prosecution barring the representative of companies to distinguish the duplicate/spurious products from original products. No FSL result/report obtained by prosecution. It is submitted during the argument by Ld. counsel for accused persons that accused Rajesh Jain was in the business of manufacturing biri and 22 bags of the lose biri were released to the applicant/accused Rajesh Jain vide order dated 20.09.2005 and it is mentioned in the order that applicant/accused filed application for renewal of their trademark from August 1991 and also for period of 7 years from August 1998 which creates doubt on the prosecution story.
28. Provision of Section 64 of Copyright Act were not complied. Section 64 Copyright Act grants power to a police official not below the rank of Sub Inspector to seize without warrant all copies of infringed work found during search of any premise. It also lays down that seized articles must be produced before a Magistrate as soon as practicable. In the present case, investigating officer deposited the case property in the malkhana and never produced before the Magistrate. The fact that IO failed to comply with the mandatory provisions of Section 64 FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 29 of 36 Copyright Act raises question mark over the seizure of alleged duplicate/spurious products. Section 100(4) of Cr. PC was not complied which cast mandatory duty upon the IO to call upon two or more independent and respectable inhabitant of the locality or any other locality if no such inhabitant of the said locality is available. Beside the representative of the company, independent and respectable residents of the locality were not called by the IO. Alleged recovery becomes doubtful. It is cardinal principle of criminal law that benefit of doubt must always go to the accused person.
29. Law is settled in State Vs Om Prakash & Ors. -ILR (2013) 5 Del 3985
10. We have heard Ld. counsel for State and also examined the judgment and the evidence placed on record. It may be noticed that to bring home the guilt of the accused persons the prosecution examined eight witnesses and the entire case of the prosecution is based on the deposition of Police Official witnesses. The prosecution has failed to involve any independent witness or any respectable persons of the locality to join the proceedings.
17. Further, as per the prosecution case, no public witness was called for at the time of taking any search of the house of accused persons. Section 100 (4) of the Cr. PC casts a mandatory duty upon the investigators to call upon two or more independent and respectable inhabitants of the locality where the search is to be conducted. The object of this provision is to ensure that searches are conducted fairly and squarely and that there is no "planting" of articles by the police.
19. Regarding non-joining of any independent witness at the time of raid, in the case of Pradeep Narayan Madgaonkar Vs State of Maharashtra (1995) 4 SCC 255, it has been held by the Apex Court:-
"11..... Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 30 of 36 possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses of the locality and made an attempt to create an impression on the courts that both PW-2 and PW-5 were witnesses of locality and were independent, knowing fully well that PW-2 was a witness who was under their influence and 'available' to them, as he had been joining the raids earlier also and PW-5 was a close associate of PW-2, their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den."
It was held in case of Pradeep Narayan Madgaonkar & Ors. Vs State of Maharashtra- (1995) 4 SCC 255 "6. Section 100(4) of Cr. PC requires that before making a search the officer or other person about to make it, shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. The Courts generally look for compliance of the aforesaid provisions, to the extent possible in the facts and circumstances of a given case. Do PW2 and PW5 satisfy the requirements of Section 100 (4) Supra? Can they be called independent respectable witnesses of the locality? If they did not belong to the locality where the search was conducted, what was the occasion for them to be present near building No. 93 at the crucial time to be joined as panch witnesses? Answer to these and some other questions, to be dealt with later on, would decide whether the conviction and sentence of the appellants is sustainable.
11. Ld. Counsel for the State, however, vehemently argued that there was no reason for the court to disbelieve the official witnesses PW1, PW4 and PW6 who had no reason to falsely implicate any of the appellants. They are independent respectable persons. Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 31 of 36 to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses of the locality and made an attempts to create an impression on the Courts that both PW-2 and PW-5 were witnesses of locality and were independent, knowing fully well that PW-2 was a witness who was under their influence and 'available' to them, as he had been joining the raids earlier also and PW-5 was a close associate of PW-2 their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den."
It was held in case of Smt. Prem Lata Vs State of Himachal Pradesh-1987 Cri LJ 1539 "5. The bare perusal of sub-sections (4), (5) and (8) of Section 100 Cr. PC makes it abundantly clear that a duty has been cast upon the officer or any other person conducting search to make every effort to do so in presence of two or more independent and respectable inhabitants of the locality in which the place to be searched is situate. If no such inhabitant is available or is willing to be a witness to the search, a witness of any other locality has to be called upon to join the raiding party or witnessing the search. These provisions are quite stringent and meant to be strictly followed inasmuch as the refusal or neglect to attend and witness a search when called upon to do so by an order in writing has been expressly made an offence under Section 187 of the Penal Code, 1860.
7. In the instant case, the prosecution evidence per se clearly indicates that independent respectable persons were easily available in the locality. In fact, there is no escape from the conclusion that H.C. Bhagwan Singh (PW-3) made no efforts at all to call upon such persons for being witness to the search. He has admitted in his cross-examination about the presence of a number of persons as well as that of seven or eight shops at the place where he associated Sh. Gopi Chand (PW-1) in the raiding party. Gopi Chand was admittedly posted at the police station, Palampur, on that date and it is not very convincing that the meeting between two of them took place in the manner deposed to by H.C. Bhagwan Singh.
8. Be that as it may, one thing which stands out like a sore thumb is the flagrant violation of law, as discussed above. After all whey the police Officers or other persons placed in such a situation should shirk to implement and comply with the express provisions of law laid down by the Legislature? In these circumstances, the entire prosecution case becomes somewhat FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 32 of 36 fishy and unfit to be acted upon. In other words, non compliance of law discussed above would give rise to doubt about the accuracy of the prosecution case, and the benefit of this doubt has to be given to the accused."
It was held in case of Vijay Jain Vs State of Madhya Pradesh-(2013) 14 SCC 527 "10. On the other hand, on a reading of this Court's judgment in Jitendra case, we find that this court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial Court as material exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.
12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witness (PW-2 and PW-3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial Court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable."
It was held in case of Jitender & Anr. Vs State of Madhya Pradesh - (2004) 10 SCC 562 "6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja seized from the possession of the accused. The best evidence would have been seized materials which ought to have been produced during the trial and marked as FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 33 of 36 material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far fetched."
It was held in case of Dnyaneshwar Vs State of Maharashtra-2019 SCC Online BOM 4949 "19. In the present matter this Court had given opportunity to the respondents to show that there was secret information received by police on that night. Though from the information, the informant's name need to be disclosed, it is necessary for police to create a record of the information received. Entry of such information which involves commission of cognizable offence needs to be made in station diary. When police officers leave for action, they need to make an entry about their movements in station diary. In the present matter the record produced by the petitioner shows that most of the respondents were assigned different duties at different places on that night. All of them came together on that night for this action but no writing is there in respect of secret information and also about the compliance of provision of section 165 of the Cr. PC. It appears that subsequent to taking the search some entry was made in the station diary but such entry cannot be used to show that there was compliance of provision of section 165 of the Cr. PC. This Court holds that the action of the police officers was illegal. This Court has no hesitation to hold that the state is liable to pay compensation to the petitioner for such illegal action. That action of police was not only the infringement into privacy but that action defamed the entire family. If in the past some crimes were registered against the petitioner for offence of accidents that cannot be considered to say that the petitioner had criminal background when his occupation was driver. Many times a driver faces such FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 34 of 36 prosecution. So, the defence of such nature taken by the respondents cannot help them to show that they had reasonable ground to take action against the petitioner. There is other probability like involvement of the rivals of the aforesaid political leader. Thus there is possibility of mala fides also in the present matter. Considering the status of the petitioner this court holds that the respondents need to pay at least Rs. 25,000/- as compensation to the petitioner. Initially that amount needs to be paid by the State and it will be open to the State to recover the amount from the concerned police officer after fixing responsibility on them."
It was held in case of Pawan Kumar & Ors Vs State of Himachal Pradesh-(2019) 4 SCC 182 "4. We have heard the Ld. counsel for the respondent in opposition to the appeal and considered the nature of evidence available. Non-production of the seized wood and the vehicle, the primary evidence of the offence, renders the prosecution case fragile and unsustainable. Mere production of the seizure memo does not tantamount to the production of the seized woods and the lorry. Unless the seized wood was produced, mere production of a sample, and there is no material in support that the sample was out of the same 22 logs, we are unable to sustain the conviction of the appellants."
30. Even if the prosecution story is believed on its face value there are material contradiction in the testimony of M.A. Rehman, Habib Khan, Tariq-Ul-Aslam and S.K. Nowman which casts shadow over the case of prosecution. It is stated by prosecution that authorized representative of Jahangir Biri Factory namely Tariq-Ul- Islam was present at the spot. However, in his testimony dated 27.01.2018, he denied to visit the place from where fake/duplicate biris were recovered and he did not identify accused Rajesh Jain and Ajay Jain in the Court. Prosecution witness Habib Khan representative of Shiv Biri deposed that he did not know the number of shop or house where the raid was conducted. He also deposed that recovered articles FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 35 of 36 were lying on the road and he had not seen the articles lying in any property which were recovered at the time of raid and also stated that lock of property bearing 4032 was not broken in his presence and further stated that recovered articles neither seized nor sealed in his presence. He also stated that he had not inspected the articles and had not stated anyone about their genuineness. Similarly, PW-1/M.A. Rehman deposed that he had not placed anything on record to show that Pataka Industries Pvt. Ltd. was producing and distributing biri No. 502 Pataka. Similarly, PW-8/Gauri Shankar deposed that no rent agreement or any rent receipt was executed regarding tenancy of accused Ajay Jain and further deposed that no police verification of accused Ajay Jain was got done by him. He deposed that he did not tell IO that recovered articles belong to accused Ajay Jain.
31. Accordingly, prosecution has failed to discharge its burden of proof. In absence of any incriminating evidence against the accused persons on record, accused persons namely Rajesh Jain and Ajay Jain are hereby acquitted of the charges U/s 63/65 CR Act levelled against them.
32. File be consigned to Record Room after due compliance.
Announced and Signed in the Open Court
on 30th November, 2023 ANUJ Digitally signed
by ANUJ KUMAR
KUMAR SINGH
Date: 2023.12.01
SINGH 00:44:21 +0530
(Anuj Kumar Singh)
ACMM-02(Central)/THC/Delhi(A)
FIR No. 137/05 PS : BHR State Vs Rajesh Jain & Anr. Page No. 36 of 36