Delhi District Court
State vs Rajesh Khurana U/S. 9B Of The Explosives ... on 12 August, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE-07, WEST, THC NEW DELHI
State v. Rajesh Khurana
FIR No.956/2005
PS Paschim Vihar
U/s 9 of Explosives Act 1884s
JUDGMENT
C C No. : 728/3/10
Date of Institution : 14.10.2006
Date of Commission of Offence : 29.10.2005
Name of the complainant : SI Manoj Sharma
PS Paschim Vihar, Delhi
Name & address of the accused : Rajesh Khurana
S/o R. C. Khurana
R/o House No. C-4A/30C
Janak Puri, Delhi
Offence complained of : U/s 9B of the Explosives Act
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for judgment : 05.08.2015
Date of announcing of judgment : 12.08.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. By this statement the court shall decide the present matter under Section 9-B of the Explosives Act 1884.
State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 1 /13
2. The briefly stated prosecution story is that on 29.10.2005 at about 2.30 pm at shop no.1, Mayur Sale Agency, Super Bazar, DDA market, Paschim Vihar, the accused was found in possession of explosives weighing 2145 Kg whereas as per license granted to him, he was permitted to possess explosives only up to 1100 kg. Hence, the accused has contravened the provision of Section 5 of the Explosives Act 1884 and committed an offence under Section 9-B of the Explosives Act. FIR was registered and investigation was carried out.
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other scruttable documents were supplied to him. Thereafter, charge was framed against the accused u/s 9-B of the Explosive Act on 14.03.2011 by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined four witnesses namely (1) HC Anil Kumar (2) Ct. Rakesh Kumar (3) ASI Ajit Singh (4) Inspector Manoj Sharma.
5. PW-1 HC Anil Kumar has deposed that on 29.10.2005 he was on patrolling duty along with Ct. Rakesh and SI Manoj Sharma. At about 2.30 pm, one secret informer met them and gave them an information that excess quantity of fire works were lying at shop no.1, Block A, Paschim Vihar. They all reached the aforesaid shop and checked the license of the shop owner. The license was found to keep only 1100 kg of fire works. All the fireworks were loaded in a tempo and was taken to Dharam Kanta, Rohtak Road, Udyog Nagar. Weight of the crackers were found to be more 1100 Kg. 30 fire-crackers were State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 2 /13 separated as sample and given serial no.1 to 30. Same were seized and sealed with the seal of MS. The sample crackers were seized vide memo Ex.PW1/A. Thereafter, they returned to the shop and sealed the shop using three locks. The locks were sealed with the seal of MS. Thereafter, IO prepared the tehrir and sent him to the police station for getting the FIR registered. After getting the FIR registered, the witness came back to the spot and handed over the rukka and copy of FIR to the IO. IO prepared the site plan which is Mark X.
6. In the cross examination, PW-1 stated that he could not recall the full registration number of the tempo but it was Tata 407 bearing no. HR 46. He did not know the name of the driver of the said Tata Tempo. He could not remember the time at which the tempo was called. He stated that weight of the tempo was taken twice at the Dharamkanta. Firstly, with the case property second time when it was empty. He could not recall the time when the rukka was given to him by the IO nor could he recall the time when he reached at the police station. He denied the suggestion that the crackers in the tempo belonged to some other parties.
7. PW-2 Ct. Rakesh Kumar deposed that on 29.10.2005 he was posted at PS Paschim Vihar. On that day, he was on patrolling duty along with SI Manoj Kumar. At about 2.30 pm, when they were present at Gurudwara A-1, Paschim Vihar, one secret informer informed SI Manoj Kumar that in Super Bazar, Shop no.1, there were huge quantity of crackers. He further deposed that Ct. Anil State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 3 /13 also met them. Thereafter, SI Manoj Kumar, Ct. Anil and secret informer reached the shop no.1. There they found huge quantity of crackers stored in plastic bags. IO asked the accused to produce the license. The license produced by the accused was permissible up to 1100 Kg. The tempo bearing no. HR46-CA-8139 and the plastic bag containing the crackers were taken to dharam Kanta. On weighing the weight of the crackers including weight of the tempo was found to be 4765 Kg. Thereafter, the empty tempo was also weighed. Hence, the crackers were found to be 2620 Kgs. Rest, he has corroborated the testimony of PW-1.
8. In the cross examination by the Ld. Counsel for accused, the witness stated that they had reached the shop at 2.30 - 2.45 pm. He stated that 14-15 persons were present at the shop. He admitted that there are several shops nearby. He also stated that IO had asked many shopkeepers to join the investigation but none agreed and left the spot without disclosing their details. He admitted that no notice was served upon such persons nor any action was taken against them. He admitted that sample were not taken to Dharam Kanta. He denied the suggestion that the case property was already lying in a tempo. He denied the suggestion that the crackers lying in the shop of the accused were below 1100 kg. He denied the suggestion that the accused has been falsely implicated in the present case in connivance with crime branch officials and that FIR No.957/05 has also been registered against the accused. His statement was recorded by SI Manoj kumar at the spot itself. State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 4 /13
9. PW-3 ASI Ajit Singh deposed that on 29.10.2005 he was posted at PS Paschim Vihar as a duty officer. His duty hours were from 4.00 pm to 12.00 mid night. He had registered the present FIR on the basis of rukka brought by Ct. Anil sent by IO SI Manoj Sharma. Copy of FIR is Ex.PW3/A and endorsement on rukka is Ex.PW3/B.
10.During cross examination, he admitted that on FIR No.957/05 was registered under Section 9B of the Explosives Act. He further admitted that it was registered against the accused Rajesh Khurana. Photocopy of the FIR No. 957/05 is Ex.PW3/DA.
11.PW-4 Inspector Manoj Sharma deposed that on 29.10.2005 he was posted at PS Paschim Vihar. He has further corroborated the testimony of PW-2. He has also deposed that after registration of FIR, further investigation was marked to second IO SI Vipin Kumar to whom he handed over the seizure memo of the case property. The second IO had prepared the site plan at his instance which is Ex.PW4/A.
12.During cross examination, he admitted that he had not given the notice to the person who had refused to join the raiding party. He admitted that no shopkeeper from neighbourhood shops was asked to join the raiding party as no one was present there as most of the shops were closed. He admitted that no photographs have been placed on record. However, he denied the suggestion that the photographer was not even called at the spot. He denied the suggestion that tempo was already carrying crackers and was brought State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 5 /13 from Rohtak, Haryana so as to falsely implicate the accused. He further stated that he had asked Ct. Rakesh to get 30 kattas. However, he had not recorded the statement of the person from whom the said kattas were purchased. He further stated that he had paid a sum of Rs.40/- to the Dharam Kanta owner. He stated that receipt of Dharam Kanta is already on record. He stated that he had not recorded the statement of the driver of the tempo namely Ashish. He stated that the copy of FIR and original rukka were given not to him but to the second IO. He could not recall whether any other shop was raided on the given date.
13.Thereafter, the PE was closed and the statement of accused was recorded u/s 313 Cr.P.C. The accused has denied all the allegations and pleaded innocence. He has stated that he had the license for fireworks up to 1100 kg. He denied that he was in possession of 2145 Kg. He stated that he has been falsely implicated. He had two shops in DDA Market, shop no.1 and shop no.9. Some officers from crime branch had come to shop no.9 and purchased some crackers but did not pay for the same. Due to this, an argument took place. In the meanwhile, one tempo carrying fireworks belonging to him as well as other parties arrived. The said tempo was seized by the police so as to falsely implicate him. No defence evidence was led despite opportunity.
14.I have heard the arguments on behalf of the State and the Ld. Counsel for accused and perused the record carefully.
State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 6 /13
15.The Counsel for accused has submitted that he has been falsely implicated and is innocent. Ld. Counsel for accused has submitted that there are various contradictions in the statement of prosecution witnesses. While PW-1 has deposed that he was on patrolling duty along with Ct. Rakesh and SI Manoj Sharma, PW-2 has deposed that Ct. Anil had come later on and he was patrolling along with SI Manoj Sharma only. Secondly, PW-1 had deposed that the samples were taken at the Dharam Kanta while PW-2 had deposed that samples were taken at the shop. Ld. Counsel has further submitted that no statement of the driver of the tempo was taken by the IO. He submits that the truck containing crackers was brought from Haryana, hence the number of the truck was 'HR'. He further submits that no receipt for hiring of the said tempo was received. Neither the driver of the tempo nor the owner of the Dharam Kanta were made as witness. He further submits that the coercive steps taken by the police was never seen for any criminal cases. He has further submitted that on the same day FIR No.957/05 under Section 9B of the Explosives Act and Section 286 IPC has been lodged against the same accused on the same day with the same allegations.
16.Ld. Counsel has relied upon the judgment delivered by Hon'ble High Court of Delhi, titled as "Sunari @ Chamari vs State", 34 (1988) DLT124 wherein it was held by the Hon'ble High Court of Delhi that not joining any public witness in the raiding team by the police amounts to non compliance of Section 51, Code of Criminal Procedure 1973 and Section 100 (4) & (8) of the said code. State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 7 /13 Recovery without the statement of public witnesses is doubtful. He has further relied upon the case of "Megha Singh vs State of Haryana" AIR 1955 Supreme Court 2339 wherein similar findings were given by the Hon'ble Supreme Court of India.
17.On the other hand, Ld. APP has submitted that prosecution has proved its case beyond reasonable doubt and the accused is liable to be convicted for the alleged offence.
18.Let us first discuss the relevant provisions of law for the purpose of the present case. Section 9B of the Explosives Act, 1884 prescribes punishment for contravention of the rules or of conditions of a license granted under Section 5 of the Act.
19.Section 5 of the Explosives Act empowers the Central Government to make rules so as to regulate or prohibit, except with the conditions of the license, to manufacture, possess, use, sale, transport, import or export explosives or any specified class of explosives.
20.It is the case of the prosecution that the accused was found in possession of fire crackers up to the weight 2145 kg while he had a license to possess the same only up to 1100 kg. The main contention of the accused is that no public witness has been made as a witness despite the place of occurrence being a crowded place. However, it is a settled position in law that the court shall not throw out the case of the prosecution merely on the ground that all the witnesses examined are police witnesses. In "Govinda Raju @ Govinda vs State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 8 /13 State of Shri Ram Puram PS & Anr", Crl Appeal No. 984 of 2007,Supreme Court, authored by Justice Swatanatra Kumar, it was held by the Hon'ble Supreme Court, "Wherever the evidence of the police officers, after careful scrutiny, inspires evidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case.........No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence on the police officers, if found reliable, unless corroborated by some independent witness."
21.Also, in the case of "Appabhai vs State of Gujarat", AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 9 /13 two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere; whether in village, life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused".
22.In the case at hand, PW-2 and PW-4 both have stated that they had asked many public persons to join the investigation but none agreed to do so. It is the common prospective of the public not to get involved in the police work and hence it is not a surprise that the public persons refused to join the investigation despite being asked by the police especially when admittedly, it was the festive day of Diwali. Court is of the view that non-examination of public witnesses would not discredit the evidence of other prosecution witnesses.
23.The second contention of the Ld. Counsel is that the accused has been falsely implicated in the present case and the same is apparent from the conduct of the police officials. It is submitted that neither the tempo owner in which the fire crackers were taken to the Dharam Kanta nor the owner of the Dharam Kanta where the fire crackers allegedly weighed have been made as a witness. Also there are various discrepancies in the testimony of prosecution State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 10 /13 witnesses. He submits that PW-2 could not tell the number of the tempo or the name of its driver. Also while PW-1 had stated that the fire crackers were weighed of 2620 Kg, PW-4 had stated that weight of the crackers were 2145 Kg.
24.It is well settled principle of law that minor discrepancy in the statement of the testimony of the witnesses would not defeat the entire story of the prosecution.
25.In "Inder Singh v State (Delhi Administration) 1978 AIR 1091, the Hon'ble Apex Court observed, "Credibility of testimony, oral or circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in a criminal case, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be calluosly allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. Judicial quest for perfect proof often accounts for police State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 11 /13 presentation of fool proof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic."
26.The discrepancies pointed out by the Ld. Counsel are minor one and same can be attributed to human fallacies. Also, driver of the truck or the owner of Dharam Kanta are not so material witnesses that their non-examination would lead to drawing of an adverse inference against the prosecution under Section 114 (g) of the Indian Evidence Act. Further even though the owner of the Dharam Kanta has not been made a witness, however, the receipt of the said Dharam Kanta has been placed on record.
27.Another defence raised by the Ld. Counsel is that the accused has been falsely implicated in another FIR No.957/05 PS Crime Branch under the same Section and same facts. The copy of the said FIR is Ex.PW3/DA. However, a perusal of the said FIR reveals that though it was registered against the same accused and on the same date and time; but the place of occurrence was shop no.9, Block-A, Super Bazar & the fire crackers were found to be of total weight of 4700 Kg. Accused has already been convicted in the said case. However, provisions of Section 300 Cr.P.C would not be attracted here as the accused has not been convicted for the same offence or on the same facts.
28.In view of the above discussion, the court is of the considered view that the prosecution has sucessfully proved the charges against the accused under Section 9B of the Explosives Act beyond reasonable doubt. It has been proved State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 12 /13 that on 29.10.2005 the accused Rajesh Khurana was found in possession of 2145 Kg of fire crackers which is beyond the permissible limit of 1100 kg as per the license granted to him. Accordingly, accused Rajesh Khurana stands convicted under Section 9 B of the Explosives Act.
29.Be listed for arguments on sentence.
ANNOUNCED IN THE OPEN COURT ON (SAUMYA CHAUHAN) 12th August 2015 MM-07(West)/ Tis Hazari Court
State vs Rajesh Khurana U/s. 9B of the Explosives Act FIR No. 956/2005 13 /13