Delhi District Court
State vs . Satya Anand @ Anand on 24 November, 2022
IN THE COURT OF MS. ARCHANA BENIWAL
CHIEF METROPOLITAN MAGISTRATE:
SOUTH WEST DISTRICT, DWARKA COURT,
NEW DELHI
FIR No. 66/2014
PS Crime Branch
State Vs. Satya Anand @ Anand
U/s 25/54/59 Arms Act
JUDGMENT
CIS No. : 425578/2016
Date of institution of the case : 25.07.2014
Date of commission of offence : 29.05.2014
Name of the complainant : HC Surender
Name of accused and address : Satya Anand @ Anand
S/o Sh. Mahaveer Singh
R/o V+Post Mitrau Near Post office,
P.S Najafgarh, Delhi.
Offence complained of : U/s 25/54/59 Arms Act
Plea of the accused : Pleaded not guilty.
Final order : Acquittal.
Date on which judgment reserved : 18.10.2022
Date of judgment : 24.11.2022.
FIR No. 66 of 2014 PS Crime Branch
State Vs. Satya Anand @ Anand Page No. 1 of 11
- :: JUDGMENT :: -
1. The brief facts of the case of the prosecution are that on 29.05.2014, at about 5:30 PM, opposite Shyam Mandir, Pochanpur Village, Sector-23, Dwarka, Delhi, accused Satya Anand @ Anand was found carrying one pistol of 7.65mm and three live cartridges of 7.65mm, without any valid arms licence, in contravention of Section 3 of Arms Act, 1959. Case was registered against him.
2. IO conducted the investigation. After completion of the investigation, charge-sheet was filed against accused Satya Anand @ Anand u/s 25/54/59 Arms Act. Cognizance of offence was taken and accused Satya Anand @ Anand was summoned to face trial. The copy of chargesheet was supplied to him under Section 207 Cr.P.C.
3. After giving opportunity to State as well as accused for making submissions on charge, a formal charge for offence u/s 25/54/59 Arms Act was framed against accused Satya Anand @ Anand to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined four witnesses.
5. PW-1 HC Sukh Chain has deposed before the court that on 29.05.2014, he was working as duty officer. He recorded the present FIR vide Ex PW 1/1. He also made endorsement on the original tehrir Ex PW 1/2 and thereafter he handed over the copy of FIR and original tehrir to Constable Vijender to be handed over to SI Abdul Qadir.
FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 2 of 11
6. PW-2 HC Surender Singh has deposed that on 29.05.2014 at about 3:30 P.M, he received an information through secret informer that a person by the name of Anand (wanted in a case of murder, who used to possess illegal arm) would arrive at Village Pochanpur, Dwarka, in between 5-6 P.M and if raid was conducted, he can be apprehended. PW-2 produced the secret informer before SI Sandeep Yadav, who further intimated him before Inspector Kuldeep Singh. Inspector Kuldeep Singh discussed the matter with ACP and after discussion, a raiding party was constituted in the supervision of SI Sandeep Yadav comprising of himself, SI Sandeep, HC Kartar, HC Ajit, Constable Ajay, Ct. Praveen, Ct. Vikram and Ct. Vijender. Arms and ammunition were received from the malkhana and through two vehicles they departed to village Pochanpur. PW-2 further deposed that in one vehicle, he alongwith SI Sandeep Yadav, secret informer and HC Ajit were seated and in another vehicle HC Kartar, Ct. Ajay, Ct. Praveen, Ct. Vikram and Ct. Vijender were seated and reached village Pochanpur at about 4:30 P.M. After reaching there, he got down from the car and asked 4-5 passers by to join the raiding team but none agreed and left the spot without disclosing their names and addresses. No notice was given to them due to paucity of time. Thereafter, he briefed the staff and as per briefing, respective positions were taken by the members of the raiding team. He alongwith secret informer was standing in front of Shyam Mandir near a board. At about 5:30 P.M, secret informer pointed towards a silver coloured Alto car bearing no. DL2CAN5594 and revealed that this car was being driven by Anand. PW-2 further deposed that with the assistance of staff, the aforesaid car was stopped and the driver was asked to get down from the car. The person who was driving the car, tried to flee from the spot, but he was apprehended with the assistance of staff. Thereafter, during the search of accused, one pistol was FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 3 of 11 recovered from the right side of his pant. Accused revealed his name as Satya Anand @ Anand on interrogation. Thereafter, the pistol was checked and it was found that it was made up of iron like metal and its butt was covered with plastic strips and same was affixed by the screw and on the barrel of the recovered pistol "CAL 7.65 mm ARMA by USA No. 10502" was written on one side and there was magazine catch on the pistol. Thereafter magazine of the said pistol was taken out and three live cartridges were found in it and on the cartridges, "KF 7.65" were engraved. Thereafter, sketch of the said pistol and three cartridges was prepared vide Ex PW 2/1. The length of the barrel was found 12.5 cm, the length of body was found 9.5 cm and length of butt was found 8.5 cm. Thereafter, recovered pistol and live cartridges were sealed with seal of NK and seized vide seizure memo Ex PW 2/2. FSL form was filled at the spot. Thereafter, he prepared tehrir Ex PW 2/3 and sent the same to the P.S for registration of FIR through Ct. Vijender. After registration of FIR, Ct. Vijender returned back at the spot alongwith IO SI Abdul Kadir to whom investigation of this case was assigned. Thereafter PW-2 handed over the accused to IO alongwith case property in sealed condition, seizure memo and sketch of the pistol and live cartridges. IO prepared site plan at the instance of PW-2 and recorded his statement. Thereafter, he left the spot. PW2 identified the case property i.e. pistol, magazine and cartridges Ex P1 (colly). He was cross-examined by Ld. defence counsel.
7. PW-3 Ct. Vijender deposed on the same lines as PW-2. He was cross-examined by Ld. defence counsel.
8. PW-4 / IO SI Abdul Kadir has deposed that on 29.05.2014, further investigation of the present case was marked to him. He reached the spot i.e. Shyam Mandir, Pochanpur Village, New Delhi where HC Surender alongwith FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 4 of 11 his raiding team met him and handed over the accused alongwith sealed pulanda and the documents to him. He interrogated the accused and recorded his disclosure statement Ex PW 4/A, prepared site plan at the instance of HC Surender Ex PW 4/B and seized the Alto Car vide memo Ex PW 4/C. Meanwhile, HC Vijender also reached at the spot after getting the FIR registered and handed over the copy of FIR and rukka to him. He arrested the accused vide memo Ex PW 4/D and conducted personal search of accused vide memo Ex PW 4/E. Thereafter the case property was deposited in the malkhana. After medical examination, accused was produced before the court. PW-4 further deposed that during the course of investigation, he sent the sealed pulanda of this case to FSL and after obtaining the FSL result, he obtained Sanction u/s 39 Arms Act and filed the same in the court. He recorded the statements of witnesses and after completion of investigation, filed the chargesheet in the court. He was cross-examined by Ld. defence counsel.
9. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents i.e. sanction u/s 39 Arms Act given by DCP Bhisham Singh and FSL report CFSL No. 2014/F-827 given by Sh. N.B. Bardhan. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of PWs at serial nos. 2 and 3 i.e. Sh. N.B. Bardhan, Principal Scientific Officer CFSL and Sh. Bhisham Singh, DCP / Crime/ South was dispensed with. No other witness was examined by the prosecution and hence, PE was closed.
10. Thereafter, statement u/s 313 Cr.P.C. of the accused was recorded, wherein all the incriminating material that appeared in evidence against him, were put to him to which he stated that he is innocent and has been falsely FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 5 of 11 implicated in this case. Accused opted not to lead defence evidence.
11. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
12. After hearing Ld. APP for the State and ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused was found in possession of one pistol and three live cartridges without a valid arms licence. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegations beyond reasonable doubt.
13. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:-
(1) whoever-
(a) Manufactures, 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 2[***]
(c) bring 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 not be less than three years but which may extend to seven years and shall also be liable to fine.
14. As per the prosecution case, the seizure memo of the case property vide Ex. PW2/2 was prepared before the preparation of rukka Ex PW 2/3. However, the said document contains the number of the FIR which shows that either the FIR number was inserted later on or it was prepared before the time it has been shown to be prepared.
FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 6 of 11
15. In the rukka Ex.PW 2/3 as well as in the testimony of all the witnesses, who are police officials it has been stated that public persons were present at the spot where accused was apprehended. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. PW-2 and PW-3 admitted during their cross-examination that they tried to serve written notice to the public persons but the public persons refused to receive the same. They informed the public persons of the consequences of not receiving the written notice. Both these witnesses have also admitted that despite the warning, they did not take any action against the public persons who had refused to receive notice. They also admitted that they had not recorded the name, address and other particulars of the public persons who refused to join the investigation and of receiving the written notice. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party including the IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
16. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 7 of 11 which is an offence under the IPC".
17. In a case law reported as "Roop Chand Vs. The State of Haryana"
1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:-
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
18. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 8 of 11 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 hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. 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."
19. This Court is, however, conscious 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 has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
20. PW-2 and PW-3 have also admitted in their cross-examination that no DD entry was recorded regarding secret information in front of them and also no DD entry regarding the departure of raiding party was recorded. PW-3 even failed to disclose the time of departure of the raiding party. FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 9 of 11
21. PW-2 stated in his cross-examination that the vehicle in which the team left for the raid were Swift Dzire and Alto and the colour of Swift Dzire car was silver and Alto was of white colour but as per PW-3, both the vehicles were of white colour. No DD entry was made regarding these vehicles. As per PW-2, he was accompanied by SI Sandeep, Ct. Vikram, Ct. Ajay, Ct. Praveen, HC Kartar and secret informer in the same car. However, as per PW-3, he was accompanied by Ct. Vikram, Ct. Ajay, Ct. Praveen and HC Kartar in the same car and the secret informer was in the other car.
22. The place from where the accused started to run from the spot and the place from where he was apprehended are not reflected in the site plan. PW-2 stated in his examination that he had conducted search of the accused but he had not taken any documents regarding ownership of the vehicle of the accused. PW-2 failed to answer as to who amongst the raiding party took the car of the accused from the spot. PW-3 also admitted that the search of the accused was conducted in front of him but he could not remember who conducted the search, though he has signed as a witness on the search and seizure memos.
23. As regards the seal, it is stated by PW-3 that the seal on the plastic box was of 'NK' and he failed to answer to whom the seal was handed over after use. PW-4 stated that the sealed pullanda bore the seal of 'SK' but he also failed to answer to whom the seal was handed over after use. He stated that the seal does not belong to him and the first IO did not hand over any document of handing over of seal to him. It is not clear to whom the seal of 'NK' belonged and to whom it was handed over after use. The case property was seized and sealed on 29.05.2014 and the same was deposited in FSL on 04.06.2014. Considering these circumstances, the possibility of case property FIR No. 66 of 2014 PS Crime Branch State Vs. Satya Anand @ Anand Page No. 10 of 11 being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
24. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
25. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Satya Anand @ Anand is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Digitally signed26. Accused be set at liberty. by ARCHANA ARCHANA BENIWAL Pronounced in the open court on this BENIWAL Date:
24th November 2022 2022.11.24
16:51:05 +0530
(ARCHANA BENIWAL)
Chief Metropolitan Magistrate
South West District, Dwarka Courts
New Delhi
FIR No. 66 of 2014 PS Crime Branch
State Vs. Satya Anand @ Anand Page No. 11 of 11