Delhi District Court
Crl. Rev. No. : 54/17 vs The State on 15 April, 2017
1
IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2
UNDER NDPS ACT:(CENTRAL DISTRICT):
TIS HAZARI COURT:DELHI
Decided on: 15.04.2017
1. Crl. Rev. No. : 54/17
Date of Institution: 10.4.2017
Sh.Rahul Gupta
S/o Sh. Ved Prakash Gupta
R/o H.No.9914, Ahata Thakur Dass,
Sarai Rohilla, Delhi.
.....Petitioner
Versus
The State
(Govt. Of NCT of Delhi)
.....Respondent
2. Crl. Rev. No. : 55/17
Date of Institution: 10.4.2017
Rakesh Sharma,
S/o Sh. K. N. Sharma
R/o H. No. 9925, Ahata Thakur Dass,
Sarai Rohilla, Delhi .....Petitioner
Versus
The State
(Govt. of NCT of Delhi) .....Respondent
2
3. Crl. Rev. No. : 56/17
Date of Institution: 10.4.2017
Sh.Vijay Kumar
S/o Sh. Ram Sunder Mehta
R/o H.No.9913, Ahata Thakur Dass,
Sarai Rohilla, Delhi.
.....Petitioner
Versus
The State
(Govt. Of NCT of Delhi)
.....Respondent
4. Crl. Rev. No. : 57/17
Date of Institution: 10.4.2017
Sh.Santosh Kumar
S/o Sh. Dev Narayan
R/o H.No.9820, Ahata Thakur Dass,
Sarai Rohilla, Delhi.
.....Petitioner
Versus
The State
(Govt. Of NCT of Delhi)
.....Respondent
3
5. Crl. Rev. No. : 58/17
Date of Institution: 10.4.2017
Sh.Pawan Kumar
S/o Sh. Ram Avtar
R/o H.No.9812, Ahata Thakur Dass,
Sarai Rohilla, Delhi.
.....Petitioner
Versus
The State
(Govt. Of NCT of Delhi)
.....Respondent
JUDGMENT
This judgment is to dispose of the above mentioned five revision petitions as the same arise out of same DD No. 56B and are based on common allegation that the petitioners were found running Eating House(s) in the same compound, in the area of Sarai Rohilla, without any license.
2 Petitioners herein faced trial before Learned Metropolitan Magistrate for an offence under Section 28 punishable under Section 112 of Delhi Police Act (herein after 4 referred to as "the Act"), on DD No. 56B registered at PS Sarai Rohilla on the accusation that on 2.8.2013, accusedpetitioner Rahul Gupta was found running a Sweet Shop at 9914, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license;
On the same day, accusedpetitioner Rakesh Sharma was found running a Dhaba at 9914, Ahaata Thakur Das building no. 9914, Sarai Rohilla, Delhi, without having any license.
On the same day, accusedpetitioner Vijay Kumar was found running a shop of Sweets & Samosas at 9913, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license;
On that very day, accusedpetitioner Santosh Kumar was found running a Dhaba under the name and style of Narayan Dhaba at 9820, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license;
On the same day, accusedpetitioner Pawan Kumar was found running a Dhaba under the name and style of Krishna Dhaba at 9812, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license.
3 On presentation of kalandra, prima facie case having been made out, learned Metropolitan Magistrate served notices 5 under Section 251 CrPC upon the accusedpetitioners. Since accusedpetitioners pleaded not guilty and claimed trial, prosecution examined two witnesses:
1. PW1 Ct. Pramod Kumar Member of patrolling party, headed by HC Om Pal.
2. PW HC Om Pal - Incharge of Patrolling Party.
4 When examined under Section 313 CrPC, accused petitioners denied all the incriminating evidence appearing in evidence against them while claiming false implication.
5 In defence, each accusedpetitioner examined himself as his own witness. Pawan Kumar, Santosh Kumar and Vijay Kumar and Rahul Gupta accusedpetitioners examined another witness each.
6 Vide impugned judgment of conviction, learned Metropolitan Magistrate held all the accused guilty of the offence under Section 28 read with Section 112 of the Act vide order dated 03.03.2017, sentenced them to pay fine of Rs.50/ or in default of payment of fine, the defaulter to undergo SI 6 for 03 days. At the same time, directions were issued for closing down of Eating House(s) and SHO was directed to ensure closure of the said Eating House(s) and submit report by 20.03.2017.
7 Vide order dated 27.03.2017 learned Metropolitan Magistrate ordered for issuance of bailable warrants against accusedpetitioners as they had reportedly failed to appear to enable the Court to pronounce order on sentence on account of nonclosure of the Eating house(s).
8 Learned counsel for petitioner has submitted that prosecution failed to prove that the Eating House(s) in question was were being run by concerned petitioneraccused. Further it has been submitted that actually the Eating House belonged to some other person, but the police wrongly challaned accused petitioners.
Learned counsel has referred to decision in Rajendra Kumar Gupta v. Govt. of NCT of Delhi & Anr. Crl. M. C. No. 175/2013 decided by our own Hon'ble High Court on 20.11.2013 and in Janak Raj v. State of NCT of Delhi & Ors. Crl. M. C. 312/2012 decided by our own Hon'ble High Court on 7 03.08.2012 and submitted that in view of these decisions, impugned judgment and orders deserve to be set aside.
9 In S. A. S. Pahwa v. State 2000 (3) CC Cases HC 323, referred to in abovecited decisions while interpreting provisions of Section 112, Hon'ble High Court observed in the manner as: "8. In relation to offence under Section 112, it is contended that a servant or agent is not supposed to obtain a license in ordinary course, and it does not appear plausible to say that a servant or an agent would fall within the term "whoever" notwithstanding the fact that the term "whosever" is much wider than the terms "owner" or "proprietor". The term "whoever" in Subsection (1) of Section 112 has to be read in proper perspective. This Court would not assume that the legislature could be indulging in legislative absurdity by asking a servant or agent to obtain license for his master or the employer or principal, for servant or agent shall always in obtaining a license for lack of authority to do so from his employer or principal and fulfilling other requirements for grant of 8 license....."
10 Section 28 of the Act empowers Commissioner of Police to make regulations to provide for registration of Eating House, including grounds of certificate of registration, which shall be deemed to be a written permission for running the Eating House.
Section 112 of the Act provides penalty when one fails to obtain such a license.
11 Expression "Eating House" has been defined under Section 2 (h) of the Act as under: "eating house" means any place to which the public are admitted and where any kind of food for drink is supplied for consumption on the premises by any person owing, or having any interest in, or managing, such place and includes (i) a refreshment room, boarding house or coffee house, or (ii) a shop where any kind of food or drink is supplied to the public for consumption in or near such shop, but does not include a place of public entertainment."
912 It may be mentioned here that no rules and regulations framed by Commissioner of Police were made part of the kalandra presented before the Trial Court. In absence thereof, it cannot be said as to who is required to get eating house registered and as to what is the procedure of its registration. But keeping in view the definition of Eating House, reproduced above, it appears that any person owning or having any interest in or managing such place is required to get the same registered.
13 In this situation, prosecution was required to prove before the Trial Court that the accusedpetitioners owned any eating house or that they were having any interest in it or that they were managing the same.
14 DD No. 56B stated to have been recorded by HCOmpal, on return to PS Sarai Rohilla, at about 3.35 pm on the same day is to the effect that Rakesh Sharma was found running eating house under the name "Sudh Bhogjanalya". Even while appearing in Court PW1 Ct. Pramod and PW2 HC Om Pal who were member of the patrolling party, stated that eating house was being run by accusedpetitioner under the name and style of 10 "Sudh Bhojanlaya".
In this case, in kalandra, HC Ompal alleged that accusedpetitioner Rakesh Sharma was running eating house under the name of "Shudh Vaishno Dhaba" at 9925, Ahata Thakur Das, Sarai Rohilla, Delhi on 02.08.2013 and that the person who was running the eating house/owner thereof was asked to show license but he could not produce any such license or any application moved in this regard. So, there is discrepancy in the name and style under which such eating house was being run by the accusedpetitioner Rakesh Sharma. No photograph depicting the name and style of the eating house was taken by PW1 or PW2. The only photograph taken on mobile of PW1 was marked as Mark A, the same having not been got duly proved.
As regards, Rahul Guptapetitioner, according to PW1 & PW2 on that date in between 3:00 to 4:00 pm, while they were on patrolling duty, they found said accusedpetitioner Rahul Gupta running a Sweet Shop at at 9914, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license;
As regards, Vijay Kumarpetitioner, according to PW1 & PW2 on that date in between 3:00 to 4:00 pm, while they were on patrolling duty, they found the said accused 11 petitioner running a Mishthan Bhander at 9813, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license. As per kalandra, number of the building was 9913. The discrepancy in the number of the building remains unexplained.
As regards, Santosh Kumarpetitioner, according to PW1 & PW2 on that date in between 3:00 to 4:00 pm, while they were on patrolling duty, they found the said accused petitioner running Narain Dhaba at 9820, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license;
As regards, Pawan Kumar, according to PW1 & PW2 on that date in between 3:00 to 4:00 pm, while they were on patrolling duty, they found the said accusedpetitioner running Krishna Dhaba at 9812, Ahata Thakur Dass, Sarai Rohilla, Delhi, without any license.
15 As finds mentioned in kalandra, customers were present at the eating house(s) but, HC Ompal did not record statement of any customer in support of the allegations levelled against the accusedpetitioners. No evidence was collected by HC Ompal in support of the allegation that accusedpetitioners were the owner of eating house(s). There is nothing in the statements of PW1 and PW2 that even prior to 02.08.2013 they 12 had seen the accused petitioners running the Eating house.
16 In view of the above discussion, Court finds that the prosecution did not lead cogent and convincing evidence to establish that any of the accused petitioner was duty bound to get the eating house registered, being its owner or having interest in it or having managed the same. As a result, the judgment of conviction recorded and orders on sentence and the consequent orders dated 27.03.2017 passed by learned Metropolitan Magistrate, deserve to be set aside. Same are hereby set arise, while allowing all the five revision petitions.
17 Trial Court record be returned. Files of revision petitions be consigned to Record Room. Copy of this judgment be placed in the files of connected revision petitions.
Announced in the open Court on this 15th April, 2017 (NARINDER KUMAR) SPECIAL JUDGE2, NDPS ACT(CENTRAL) TIS HAZARI COURT:DELHI