Delhi District Court
1 Mcd vs . R C Gupta on 5 October, 2009
1 MCD Vs. R C Gupta
IN THE COURT OF SURESH KUMAR GUPTA
METROPOLITAN MAGISTRATE
KARKARDOOMA COURT, DELHI
CC No.9082/08 dtd 28.11.08 RBT
840/1 dtd 05.12.05 Original
MCD Vs. R C Gupta
U/s. 3/11 Maleria ByeLaws.
1. Sl. No. of the case 9082/08 dtd 28.11.08 RBT
840/1 dtd 05.12.05 Orginal
2. Date of commission of offence 20.09.05
3. Date of Institution 25.10.05
4. Name of the complainant Municipal Corporation of Delhi
5. Name of the accused R C Gupta S/o Sh. Ram
Chander R/o C63, DDA Flats,
West Gorakh Park, Delhi
6. Offence Complained or proved U/s. 3/11 Maleria ByeLaws
7. Plea of the accused Pleaded not guilty
8. Arguments heard /Order reserved on 24.09.09
9. Date of such order 05.10.09
10.Final Order Acquitted
2 MCD Vs. R C Gupta
J U D G M E N T
1. The facts of the case are like this. On 20.09.05 at C63, DDA Flats, West Gorakh Park, Delhi, Sunahari Lal Sharma, Asst. Malaria Inspector inspected the cooler in the house of the accused and found the growth of mosquitoes upto 13A. There was possibility of Dengue by the growth of mosquitoes.
2. Accused put his appearance. Copy of challan was supplied to him. NOA u/s 251 Cr P C was put to him on 14.07.06 by Ld. Special MM. The accused pleaded not guilty and claimed trial. The case was transferred to the Court of my Ld. predecessor by the order date 25.10.05 of Ld. CMM, Delhi. Prosecution examined 1 witness. Prosecution examination closed. Accused was examined u/s 281 Cr P C to which he submitted that no offence is made out under the section for which he has been charged. However, no defence was lead.
3. Prosecution examined one witness. PW1 Sunehari Lal Sharma stated that on 20.09.05, he was on routine visit in the area of West Gorakh Park Extn. He visited the Flat No. C63, West Gorakh Park and found the 3 MCD Vs. R C Gupta growth of Adeas Mosquito breeding up to 1/3rd in one cooler of the house of the accused. He challaned the accused Ex. PW1/A bears his signature at point B. Sh. Vivek Tiwari, DBC worker was with him. The accused misbehaved with them and used filthy language. The challan was placed before Municipal Prosecutor on 22.09.05 for the prosecution of accused. During his cross examination, he stated that no notice was issued prior to 20.09.05 at the residence of the accused. The suggestion is denied that only MHO is empowered to challan under Maleria Act. He did not informed the police when he was misbehaved or threatened. It is correct that accused was not present in the house. It is correct that the challan does not bear the signature of his associate or of any other public witness. He did not collect mosquitoes from the cooler. It is correct that he did not send anything to confirm the growth of Adeas Mosquito in the cooler. It is admitted that he challaned the accused of his own. He obtained the signatures of the residents available there but he cannot recollect their names. It is correct that he did not collect any document to show that some other official was with him at the time of challan of the accused. It is correct that, he has not prepared any document to show the 4 MCD Vs. R C Gupta treatment of the growth of Adeas Mosquito. The suggestion is also not denied that he was alone at the time of visit of the house of the accused. The suggestion is admitted that he did not attach any document to show the treatment of the growth of Adeas Mosquito. The suggestion is also denied that, there was no water in the cooler. He cannot tell the signatures on the back of the Ex. PW1/A encircled at point E. The suggestion is denied that he is deposing falsely.
4. I have heard Ld. AMP for the Complainant, ld. Defence Counsel and perused the entire evidence on record. Ld. Defence Counsel submitted that proper sections is not invoked by the prosecution to prosecute the case. He further submitted that the DBC worker is not cited as a witness which shows that no one was with PW1 at the time of challan of accused. He further submitted that prior notice to the house owner was not given as required under DMC Malaria & Other Mosquito Borne Disease Bye laws, 1975. He further submitted that neither sample was collected nor treatment was done by PW1. Ld. AMP for the complainant urged to contrary.
5. Heard and perused the record. The case of the prosecution is that on 5 MCD Vs. R C Gupta 20.09.05, PW1 visited the premises No. C63, West Gorakh Pur, Delhi and found the growth of Adeas Mosquits in the cooler installed by the accused in his house. To prove this, prosecution examined 1 witness. I have perused the testimony of PW1. The testimony of PW1 does not inspire confidence. Section 4 of Delhi Municipal Corporation Malaria and other Mosquito Borne Disease ByeLaws, 1975 shows that (1) The Commissioner may, by notice in writing, require the owner of the occupier of any premises, containing any collection of standing or flowing water in which mosquitoes breed or are likely to breed, with such time as may be specified in the notice, not being less than 24 hours, to take such measures with respect to the same, or to treat the same by such physical, chemical or biological method, being measures or a method, as the Commissioner may consider suitable in the circumstances.
(2) If a notice under clause (1) is served on the owner/occupier and if the owner/occupier fails to comply with the same within the stipulated period, the Commissioner shall do the needful at the cost of the owner/occupier and shall be entitled to recover from the 6 MCD Vs. R C Gupta owner/occupier the expenses incurred by him in taking such measures and adopting such method or treatment, and may, recover such expenses in pursuance of Section 122 (1) of D.M.C Act, 1957.
6. It is clear that a notice is required to be given to the occupier of the premises during the growth of mosquitoes within 24 hours, otherwise treatment shall be done by the Corporation at the expense of the occupier/owner of the premises. No such notice is given by the prosecution to the accused for the reasons best known to them. There is no explanation on record.
7. There was alleged growth of Adeas Mosquito in the cooler, installed in the premises by the accused. The defence of the accused is that, there is no such growth of Adeas mosquitoes in the cooler but PW1 demanded some money in order to get rid of accused. No sample was collected by PW1 to show that there was growth of Adeas Mosquitoes in the cooler of accused. No treatment was done by PW1 when he allegedly noticed the growth of Adeas Mosquito in the cooler. In the absence of such explanation from prosecution, the testimony of PW1 does not expire cofidence.
8. The testimony of PW1 shows that, Vivek Tiwari, DBC worker was with him at the time of inspection. He is neither cited as a witness nor examined by the prosecution. His examination is essential to unfold the real prosecution case.
9. PW 1 has allegedly misbehaved by the accused. Challan Ex. PW1/A shows that PW1 was misbehaved but exact words are not written in Ex.PW1/A. There is nothing even in Ex.PW1/A that accused misbehaved with PW1. He admitted in cross examination admitted that accused was not present in the house at that time. This means that accused did not behave with PW1. The prosecution has failed to prove as to who had misbehaved with PW1.
10. I find force in the argument of Ld. Defence Counsel. The testimony of PW1 is unfit to act upon.
11. Hence, I have no hesitation to hold that prosecution has failed to prove its case against the accused beyond shadow of reasonable doubt and accordingly accused is acquitted of the offence charged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN SURESH KUMAR GUPTA
8 MCD Vs. R C Gupta
COURT ON 05.10.09 MM / KKD /05.10.09