Delhi District Court
State vs . : Prashant on 25 January, 2019
IN THE COURT OF SH BHUPINDER SINGH: ACMM01(CENTRAL)
TIS HAZARI COURT: DELHI
State vs. : Prashant
FIR No. : 269/11
U/S : 286 IPC & 9B Explosives Act, 1884
PS : Crime Branch
JUDGMENT
a) Sl. No. of the case : 296311/16
b) CNR no. : DLCT020016492012
c) Date of institution of the case : 13/04/2012
d) Date of commission of offence : 14/10/2011
e) Name of the complainant : SI Sukram Pal
f) Name & address of the : Prashant S/o Sh. Hansraj Khandelwal
accused Shop no. 9898, Ahata Thakur Dass,
Sarai Rohilla, Delhi
g) Offence charged with : 286 IPC & 9B of Explosives Act, 1884
h) Plea of the accused : Pleaded not guilty.
i) Arguments heard on : 18/01/2019
j) Final order : Acquitted
k) Date of Judgment : 25/01/2019
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Prashant has been sent to face trial with the allegations that on 14/10/2011 at 05:30 p.m. at shop no. 6, K.L. Gupta Complex, New Rohtak Road, Sarai Rohilla, Delhi accused was found in possession of fire crackers weighing around 1185 kgs without carrying the requisite license prescribed under the Explosive Act 1884 and thereby committed offences punishable under Section 9B of the Act and Section 286 of Indian Penal Code (IPC).
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed on FIR No. 269/11 State Vs Prashant 1/7 behalf of the Investigating officer and the accused was consequently summoned. After supplying of copies, a formal notice U/sec. 251 Cr.PC for commission of offence U/s 286 IPC & Section 9 of Explosives Act, 1884 was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined seven witnesses.
4. PW1 Kushal Pal Yadav deposed that he along with his brother and father were running a dharamkanta under the name of Nav Bharat Dharamkanta from Plot no. 6, Amar Park, New Delhi. He proved the receipt Ex. PW1/A issued by his dharamkanta.
During crossexamination, he denied that the receipt Ex. PW1/A was not belonged to Navbharat Dharamkanta and the said receipt is forged and fabricated.
5. PW2 ASI Rohtas deposed that on 14/10/2011, SI Sukhram conducted a raiding team consisting of themselves and other police officials. They on receipt of secret information that the crackers were illegally stored, at 05:30 p.m. reached at the spot i.e. Gupta Complex, Shop no. 6. That IO requested public persons to join the raiding team but none agreed. That at the spot one person i.e. accused was present. They asked for license for storing crackers in his godown. That accused told them that he was not having any license as he want to sold those crackers on occasion of Diwali and gain profit. That the 65 cartons and polybags were seized vide memo Ex.PW2/A. That IO weighted the seized case property. That IO prepared rukka and got the FIR registered through Const. Praveen. That the accused was arrested. That the case property was deposited in malkhana.
During crossexamination he deposed that he does not remember the registration number of the vehicle by which they went to raid. Further the location of the shop was in the market. He denied the suggestion that they have not met accused at the spot or have not made any public persons as witness as they have not raided the shop.
6. PW3 ASI Azad Singh proved the FIR Ex. PW3/A, endorsement on rukka Ex.
PW3/B & certificate U/s 65B Indian Evidence Act.
FIR No. 269/11 State Vs Prashant 2/7
7. PW4 HC Rishi Kumar deposed on the similar lines of PW2. He further deposed that at the instance of IO, he deposited the case property with Kataria Fireworks, Village Dadri, District Jhajjar, Haryana.
During crossexamination he deposed that they reached at the spot at 05:20 p.m. He denied the suggestion that he never visited the shop in question. He further denied that nothing was recovered from the accused.
8. PW5 HC Parveen deposed that on 14/10/2011 he along with IO and other police officials raided at one shop of crackers at Gupta Complex New Rohtak Road Sarai Rohilla. Further he deposed about recovery and seizure of 65 cartons. That he went to PS and got the FIR registered.
During crossexamination he deposed that his departure entry was DD no. 27. He further deposed that only IO counted the number of cartons found at the spot. He denied the suggestion that there were no cartons found at the spot.
9. PW6 Insp. Sukram Pal has deposed about investigation conducted by him. He deposed that on 14/10/2011 on receiving secret information, one raiding party was constituted consisting of himself and other police officials. That they went to the spot by car and reached at the spot i.e. Gupta Complex New Rohtak Road Sarai Rohilla at about 05:15 p.m. That he requested passerby to join investigation but they refused. That they entered in the shop and found accused sitting in the shop. That they asked him to produce license of the fire crackers but he failed to produce the same. That he counted the cartons found in the shop and seized 65 cartons vide memo Ex. PW2/A. That he weighted the case property. The receipt of the same being Ex. PW1/A. He further deposed about preparation of rukka, registration of FIR, DD no. 27 & DD no. 16 being Ex. PW6/A & Ex. PW6/B, arrest and personal search of accused vide memo Ex. PW6/C & Ex. PW6/D. That the case property was deposited in malkhana and on the next day in Kataria Farm House. That he wrote an application to the Dy. Chief Controller, Explosive North Circle Faridabad Ex. PW6/E for sample of fire crackers. That thereafter, the further investigation was marked to another IO.
FIR No. 269/11 State Vs Prashant 3/7 During crossexamination he deposed that there was a complex at the spot. Further he do not remember the number of floors in that complex and the shop in question was situated at ground floor. Further fire crackers were kept inside the shop openly in the cartons and polybags. He denied that suggestion that no photograph were clicked as the case property was not recovered from the accused. Further that there was no public witness at the spot that is why none of the witness in the chargesheet is a public witness.
10. PW7 Subhash Chand Kataria deposed that on 15/10/2011 vide RC no. 481/21/11 Ex. PW7/A the case property of the present case was deposited in his godown.
During crossexamination he denied the suggestion that no case property was deposited in his malkhana.
11. On conclusion of PE, statement of accused was recorded, wherein all the incriminating evidence was put to him. Accused claimed to be innocent and falsely implicated. Accused chose not to lead any defence evidence.
12. I have heard the arguments as advanced by the Ld. APP for the State, Ld defence counsel and perused the record.
13. The case of the prosecution is that the accused was possessing 1185 kg. of fire crackers (explosives substance) at Shop no. 6, K.L. Gupta Complex New Rohtak Road without obtaining prescribed license from the competent authority under the Explosives Substance Act, 1884 and was holding the same in contravention of Explosives Substance Rules, 2008.
14. In order to prove the recovery of crackers in such huge quantity, prosecution has relied upon testimonies of PW2 ASI Rohtash, PW4 Rishi Kumar, PW5 HC Parveen and PW6 IO Insp. Sukhram Pal.
15. At the outset, it is observed that there is nothing on record to connect the FIR No. 269/11 State Vs Prashant 4/7 accused with shop no. 6, K.L. Gupta Complex, New Rohtak Road, Sarai Rohilla, Delhi from which the crackers were allegedly recovered. It has not been proved whether the accused was holding the premises as a tenant or owner or otherwise. No site plan depicting the dimensions of the shop, its position or the floor on which it was situated has been filed along with the charge sheet. It has not been proved as to for what purpose the shop was being used other than for selling/storing of crackers which is a seasonal business. No photographs of the spot has been taken to suggest if there was any advertisement board over there or not. It has been admitted that at the time of raid the PWs were having mobile phones with him and as such the photographs could have easily been taken. No other employee of the accused was made a witness as it is not possible that accused himself must be dealing with such crackers on his own.
16. As per the testimonies of the police officials, IO had requested 34 persons to join the raiding party, but none agreed and left the spot. Further that due to paucity of time no notice could be issued to them for such refusal. The court failed to understand that when raid was allegedly conducted approximately at 05:00 p.m., where does the question of paucity of time arose. At least after recovery independent witnesses should have been examined and their signatures taken on the seizure memo to strengthened the recovery proceedings. If not the passerby, the shopkeepers of the adjacent shops should have been joined which would neither have consumed any time and would have corroborated the presence of police officials on the spot, which has been doubted by the defence.
17. In the present case, as per PWs, public persons were requested to join but none of them agreed. However, no written notice was served upon them to join the proceedings in the present case or to face action U/sec. 187 IPC. Therefore it is clear that sincere efforts were not made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution.
18. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under: '' It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is FIR No. 269/11 State Vs Prashant 5/7 evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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, which is an offence under the IPC''.
19. Local police was also not joined during the proceedings. They should have been informed at least after the recovery proceedings and to ascertain the lapses on the part of the beat constable/local police for their failure to let such huge quantity of crackers being accumulated therein.
20. Case property was never produced before the court and as per the testimonies of PWs, the same was deposited with Kataria Fire Works. In order to prove the same, the prosecution examined PW7/Sh. Subhash chand Kataria who deposed that on 15/10/2011 as per RC no. 481/21/11 which he proved as Ex. PW7/A case property was deposited in his godown, though he did not remember as to how many cartons were there and who were its owner. There is nothing on record to suggest as to for what reasons/purpose the case property was deposited with Kataria Fire Works, Jhajjhar as no direction/guidelines of any agency/authority has been filed on record. As per letter dated 15/10/2011of IO SI Sukhram Pal to Kataria Fireworks, Jhajjar Haryana, request was made for depositing the recovered crackers contained in 65 cartons/polybags. The receipt of the same has been affirmed by PW7 but till date it has not been apprised as to the status or the manner in which the crackers have been disposed of. As per report dated 23/01/2015 of Sh. Rahul Kumar Mandloi, Dy. Controller of Explosives, North Circle Faridabad which remains unproved as he was not made a witness, it was recommended to obtained permission of disposal/destruction of the rest of the seized fire works, from the court which does not seems to have been done.
21. As per PWs ASI Rohtash/PW2 on instructions of IO hired one tempo from Rohtak Road and the case property in sealed condition was loaded therein. The receipt of FIR No. 269/11 State Vs Prashant 6/7 the Dharamkanta where it was weighed has been proved as Ex. PW1/A but the said tempo driver had not been made witness to lend weight to the story of the prosecution. Nothing is on record to suggest as to who had made payment of the hiring charges of the said tempo. PW6 IO Insp. Sukhram Pal deposed that after his transfer, further investigation was conducted by another IO. However, no other witness remained to be examined and IO submitting the final report i.e. HC Shailender Singh did not cite himself as witness and as such no further investigation seems to have been done.
22. As per the prosecution case, seizure memo Ex. PW2/A was prepared before the preparation of the Rukka. However, the said document would show that it contained the number of the FIR. It shows the serious infirmity in the case of prosecution as either the number of the FIR was inserted later on or that it was prepared before the time it has been shown to has been prepared. Be that as it may the same creates a reasonable doubt in the story of prosecution. The reliance is placed on the judgment of Giri Raj Vs. State 83 (2000) DLT 201, Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J. 1510, Pawan Kumar Vs. Delhi Administration, 1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J. 114.
23. Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Prashant stands acquitted of the offence Under Sec. 286 IPC & Section 9B of Explosives Act, 1884. Case property be destroyed after the expiry of the period of appeal. Ordered accordingly.
Digitally signed by BHUPINDER BHUPINDER SINGH
SINGH Date: 2019.01.28
11:39:33 +0530
Announced and dictated in (Bhupinder Singh)
the open Court on 25/01/2019 ACMM(01)/Central THC
25/01/2019
FIR No. 269/11 State Vs Prashant 7/7