Delhi District Court
State vs Shamim Ahmed on 29 November, 2024
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IN THE COURT OF ASHISH KUMAR MEENA
JMFC-01, SAKET COURT (SOUTH) NEW DELHI.
FIR NO.:79/2023
U/S: 188/488 IPC & 461 DMC ACT
PS: Malviya Nagar
STATE
VS.
SHAMIM AHMED, S/o SH. BASHIR AHMED,
R/O H. NO. 61, CORNER MARKET,
MALVIYA NAGAR, NEW DELHI ...... ACCUSED
1. Sr. No. of the case : 1420/2023
2. The date of offence : 27.12.2022
3. The name of the complainant : DC SDMC
4. The plea of the accused : Pleaded not guilty
5. Argument heard on : 08.11.2024
6. The date of order : 29.11.2024
7. The final order : Acquitted
JUDGMENT
1. As per the complainant of concerned Deputy Commissioner, South Zone, MCD, Delhi ("DC, MCD"), Shamim Ahmad ("Accused") is facing trial for the allegations that on or before 27.12.2022, at time unknown, at the property bearing no. R-4, Khirki Extension, New Delhi, within the jurisdiction of PS-Malviya Nagar, the accused, being the Digitally signed by ASHISH ASHISH KUMAR MEENA FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed KUMAR Date:
MEENA 2024.11.29 16:57:38 +0530 Page 2 of 8 owner/builder/occupier of the aforesaid property, has tampered/break open the seal affixed on the aforesaid property by officials of MCD, South Zone, which was booked for unauthorized construction u/s 343/344 DMC Act, dt. 09.03.2022 and the same was consequently sealed on 15.03.2022. Furthermore, the accused has trespassed on the said property and thereby committed the offences punishable u/s 188/448 IPC r/w 461 of DMC Act, 1957.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO. Consequently, accused was summoned after taking cognizance of offence. The accused was charged u/s 188/448 IPC r/w 461 DMC Act to which accused pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, prosecution examined two witnesses. PW-1 Sh. Sunny Raman (the then JE) has deposed that on 15.03.2022, he was posted as JE, BLDG, South Zone, SDMC in the area of Khirki Extension, New Delhi. On the said day, he was on demolition/sealing programme alongwith demolition team and police officials. They reached at property no. R-4, Khiriki Extension, New Delhi where he took demolition action and after demolition, the said property was sealed at two points at two different staircase. After reaching office he prepared internal noting vide Ex.PW1/A. Thereafter, watch and ward order was passed. Sealing order was passed on 22.09.2021 and the same was executed on 15.03.2022. On 27.12.2022, on routine inspection, he found that the seal which was intact on 15.03.2022 was tampered with so he visited the office and initiated the seal tampering FIR on 27.12.2022. With Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA Date:
FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed MEENA 2024.11.29 16:57:46 +0530 Page 3 of 8 due process of law, complaint regarding seal tampering was made in PS-Malviya Nagar on 12.01.2023 by DC, South Zone, SDMC. IO called him to join the investigation, he went at the property and pointed out towards the property. Thereafter, IO has prepared the site plan vide Ex.PW1/B. IO had recorded his statement u/s 161 Cr.P.C. on the same day. He also took photographs at the time of demolition/sealing proceedings. The witness was duly cross-examined by the accused.
4. PW-2 IO/ASI Tahir Hussain has deposed that on 16.01.2023, a complaint which was sent by MCD u/s 448/188 IPC r/w 461 DMC Act was marked to him by the SHO for investigation. He endorsed the same and got FIR registered on 23.01.2023 vide endorsement Ex.PW2/A. He already collected all the documents pertaining to this case alongwith complaint. On 24.01.2023, he gave notice to JE Sh. Sunny Raman u/s 160 Cr.P.C. to join the investigation vide Ex.PW2/B. He alongwith JE Sh. Sunny Raman visited the property i.e. R-4, Khirki Extension, New Delhi and JE pointed out towards the property in question and told him that this is the property where seal which were affixed by MCD found tampered. At the instance of JE he prepared the site plan of the property. Thereafter, he recorded statement of JE u/s 161 Cr.P.C. He was knowing that the property belongs to person namely Shamim Ahmad as a case of unauthorized construction against the same property was filed by MCD and he was IO of that case. However, owner of the property was not present. So, he came back to PS. He again visited the property on 25.01.2023 and met with owner at the property. He gave notice u/s 91 Cr.P.C. to the owner to produce the property document vide Ex.PW2/C. Accused produced his Digitally signed by ASHISH ASHISH KUMAR State Vs. Shamim Ahmed KUMAR MEENA FIR No:79/2023 PS: Mehrauli Date:
MEENA 2024.11.29
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property document on the same day. The same was taken into custody by him through seizure memo Ex.PW2/D. He inquired from the accused who gave his statement that he tampered the seal which was put by MCD. He recorded disclosure statement of accused vide Ex.PW2/E and gave notice u/s 41A Cr.P.C. vide Ex.PW2/F. He bound down the accused. He wrote letter to DC, South Zone, SDMC for seeking permission u/s 195 Cr.P.C. r/w Section 467 DMC Act vide permission letter Ex.PW2/G. He got permission on 09.02.2023, completed the investigation, prepared the charge-sheet u/s 448/188 IPC r/w 461 DMC Act and submitted it before the concerned Court. The witness was duly cross-examined by the accused.
5. Vide separate statement under Section 294 Cr.P.C., the accused has admitted the present FIR, Certificate under Section 65 B of Indian Evidence Act supporting the FIR, Complaint u/s 466A DMC Act and Complaint u/s 467 DMC Act & 195 Cr.P.C.
In view of the same, remaining witnesses were dropped from the list of witnesses. Accordingly, prosecution evidence concluded.
6. On completion of prosecution evidence, statement of accused was recorded u/s 281 Cr.P.C r/w 313 Cr.P.C, wherein all the incriminating evidence was put to the accused, to which he stated that he has been falsely implicated in this case. He has stated that he is innocent and all the exhibits are false and manipulated. Further, the accused wished not to lead defence evidence.
7. Final arguments heard. Case file perused.
8. Short point for determination before this court is as under: Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed MEENA Date:
2024.11.29 16:58:02 +0530 Page 5 of 8 ''Whether on or before 27.12.2022, at time unknown, at the property bearing no. R-4, Khirki Extension, New Delhi, within the jurisdiction of PS-Malviya Nagar, the accused, being the owner/builder/occupier of the aforesaid property, has tampered/break open the seal affixed on the aforesaid property by officials of MCD, South Zone, which was booked for unauthorized construction u/s 343/344 DMC Act, dt. 09.03.2022 and the same was consequently sealed on 15.03.2022. Furthermore, the accused has trespassed on the said property and thereby committed the offences punishable u/s 188/448 IPC r/w 461 of DMC Act, 1957."
9. It is argued by the Ld. APP for the state that the ocular and the documentary evidence on record has proved the prosecution case beyond reasonable doubt. Ld. APP for the state submitted that there is sufficient material available on record to convict the accused and hence prayed for conviction of accused as per the evidence produced by the prosecution witnesses.
10. It is argued by the Ld. Counsel for the accused that the accused is innocent and falsely implicated in the present matter. Further, it is submitted that the prosecution has no evidence against the accused, hence, he liable to be get acquitted from all charges.
11. Final argument heard. Record Perused.
12. In the present case accused is charged under Section Digitally signed by ASHISH ASHISH KUMAR KUMAR MEENA Date:
FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed MEENA 2024.11.29 16:58:07 +0530 Page 6 of 8 188/448 IPC r/w 461 DMC Act. Thus, the prosecution is required to prove that the property was sealed and subsequently the said seal was tampered by the accused. As discussed above, the property in question was initially booked for unauthorized construction u/s 343/344 DMC Act, and the same was consequently sealed on 15.03.2022. Further, the said seal was found tampered/break open on 27.12.2022. As per the statement of PW-1, the property R-04, Khirki Extension was sealed at two points at two different staircase making second floor and third floor inaccessible. It is a matter of record that neither the report of Inspecting Officer/The then JE or complaint of DC, South Zone, MCD is annexed with photographs reflecting that the proceedings of sealing the said site had taken place. Furthermore, the prosecution has not placed the sealing case file to ascertain if the particular property was ever sealed by PW-1 Sunny Raman, the then JE. As per the statement of PW-1, sealing order was passed on 22.09.2021 which got executed on 15.03.2022 are not placed on record. Thus, it is difficult for this court to ascertain if the property in question was actually sealed and same proves to be fatal to the case of prosecution.
13. Furthermore, PW-2 ASI Tahir Hussain has stated that he visited the property in question and met JE Sunny Raman, who pointed out towards the property in question and told the IO at which point the seals were affixed by MCD, which has now been tampered. It is obvious that the IO could not find any tampered seal at the spot. However, it is to be noted that the IO did not take any photographs of the place of incident, which could reflect that the said site again sealed by the concerned JE, MCD. On the other hand, PW-1 Sunny Raman has stated that he took Digitally signed by ASHISH FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed ASHISH KUMAR KUMAR MEENA Date:
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photographs of property at the time of sealing proceedings and demolition proceedings, however, the same are also not placed on record. The lapse in investigation and non-assistance of concerned official of MCD has again left this Court to decide a matter, for which there may be evidence but the same are not placed on record. In view of this Court, the prosecution was required to prove that the property was sealed by MCD and the same was consequently tampered by the accused, thus, accused has committed the offence punishable u/s 188/488 IPC. Notably, the IO and concerned official of MCD have not placed most relevant document before this court to prove that the property was actually sealed on 15.03.2022. The said lapse in investigation proves to be fatal to the case of prosecution.
14. From the aforesaid discussion, it is very clear that the manner in which the investigation has been conducted on the spot, it makes the prosecution version highly doubtful. The prosecution was required to prove that the accused, being owner/builder/occupier, has tampered with the seal affixed on 15.03.2022. However, there is no evidence on record which proves that the seal was affixed by concerned official of MCD.
15. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
Digitally signed by ASHISH ASHISH KUMAR
16. Hence, accused Sh. Shamim Ahmed, S/o Sh. Bashir KUMAR MEENA Date:
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FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed
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Ahmed stands acquitted of the offence under Section 188/488 of Indian Penal Code r/w Section 461 of The Delhi Municipal Corporation Act, 1957, he has been charged with. Ordered accordingly.
ANNOUNCED IN THE OPEN COURT ON 29.11.2024. IT IS CERTIFIED THAT THE PRESENT JUDGMENT RUNS INTO EIGHT PAGES AND EACH PAGE BEARS SIGNATURE OF THE UNDERSIGNED. Digitally signed ASHISH by ASHISH KUMAR MEENA KUMAR Date:
MEENA 2024.11.29 16:58:30 +0530 (ASHISH KUMAR MEENA) JMFC-01/SAKET COURT(SOUTH), NEW DELHI/29.11.2024 FIR No:79/2023 PS: Mehrauli State Vs. Shamim Ahmed