Delhi District Court
Bal Kishan Aggarwal vs The State (Govt. Of Nct Of Delhi) on 1 April, 2011
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 24.12.2010
Date of judgment reserved on : 01.04.2011
Date of decision : 01.04.2011
Criminal Appeal No. 56/2010
IN THE MATTER OF :
Bal Kishan Aggarwal
S/o Late Shri Bhajan Lal
R/o Shop No. 2,
Race Course, B. R. Camp,
New Delhi. .... Appellant / accused
Versus
The State (Govt. of NCT of Delhi) ..... Respondent
J U D G M E N T : Appellant accused Bal Kishan Aggarwal has been convicted u/s. 112 of the Delhi Police Act ( hereinafter referred to as Act) for he being found running an eating house from shop no. 2, Race Course, New Delhi on 25.7.2008 and that eating house activity was being carried in breach of provisions of section 112 read with section 28(za) of the Act. He was sentenced to pay a fine of Rs. 50/ as prescribed for this offence and simultaneous order for closing that eating house activity was also passed by CA No. 56/10 Page 1 of 7 Page No. 2 issuing a direction that appellant shall refrain from operating eating house from the premises until a licence or certificate of registration for the same was obtained.
Present appeal has been filed questioning legality and correctness of this conviction and it has been heard today from both sides. Appellant counsel Shri Sanjay Bhargawa submitted that breach of provisions of section 112 of the Act ought not to have been found proved and established only from the testimony of SI Sarvesh Kumar who was examined before Ld. MM and on whose kalandra this prosecution was initiated. Ld. counsel submitted that though SI Sarvesh Kumar placed on record photographs which he deposed were taken by his mobile phone camera even those photographs were not proved in accordance with law. Counsel further submitted that appellantaccused had a permission / licence from NDMC for carrying business activity from the shop in selling biscuit , snacks etc and appellant was carrying business very strictly restricted to that permission / licence from NDMC and prosecution of appellant under section 112 Act was illegal and bad and consequently conviction and sentence was liable to be set aside. Counsel argued that not only the photographs placed on record by SI Sarvesh have not been proved in accordance with law, the photographs are without any sanctity or authenticity if it really focused the shop allegedly being run as a eating house by the appellant. He pointed out that even testimony of SI Sarvesh CA No. 56/10 Page 2 of 7 Page No. 3 before the court was entirely vague and should not have been accepted for proving the violation attributed to appellant. On the other hand, Ld. Addl. PP submitted that judgment appeal against has dealt with all these aspects very elaborately and there was no reason or ground to interfere.
Question in this appeal is whether the case of the prosecution that an eating house was being run from shop no. 2 , Race Course, B.R.Camp, New Delhi on 25.7.2008 and that eating house activity was without the premises had a certificate of registration as eating house and thus punishable u/s. 112 of the Act.
Section 28 of the Act confers powers in Commissioner of Police to provide for regularization for regulating traffic and for preservation of order in public place. Subclause (za) then provides for registration of eating house and that includes grant of a certificate of registration for an eating house which shall be deemed to be a written permission required and obtained under the Act.
Eating house has been defined at subclause H of section 2 of the Act. This definition says that eating house could be :
1. Place to which the public are admitted ;
2. And where any kind of food or drink is supplied for consumption ;
3. On the premises by any person owning, or having any interest in, or managing, such place and its 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; CA No. 56/10 Page 3 of 7
Page No. 4 Finally section 112 of the Act provides for penalty for breach of provisions of section 28 of the Act.
Question in this appeal is whether the breach in terms of section 112 of the Act allegedly found committed by the appellant stands duly proved i.e., if appellant was found running an eating house. Definition of eating house as seen above signifies a place where any kind of food or drink is supplied for consumption on the premises by any person owning or having interest or managing such place. Deposition of SI Sarvesh before the court is that on 25.7.2008 while posted at Tuglak Road and in patrolling duty at around 5.30 PM, he reached shop no. 2,Race Course and there was a dhaba in which costumers were taking meals, sitting on table and chair in the shop . Owner of the shop disclosed his name Bal Kishan Aggarwal. He further deposed that he asked Bal Kishan Aggarwal to produce eating house licence from Delhi Police but he could not produce the same. Does this evidence proves the prosecution charge that eating house was being run in breach of section 28(za) punishable u/s. 112. Defence counsel argued that such an abstract statement that costumers were taking meals without there being any further deposition by the witness as to what kind of that meals was being served, where that meal was being procured and prepared and how many costumers were there being served with meals or if that meals belonged to those persons if found eating that meals in that place, evidence leaves all such questions to anybody guess. Ld. Addl. PP points CA No. 56/10 Page 4 of 7 Page No. 5 out towards the photographs which have been filed with the kalandra and these photographs showed that some costumers are inside the shop and appeared being entertained with some food stuffs. Defence counsel condemned this part of the prosecution case where photographs have not been proved in accordance with law. IO SI Sarvesh claims to have taken these photographs from his mobile phone camera and got it developed / print out taken through a studio but then no such certificate has been added by the person who worked out these prints with the help of computer that it were the prints taken out from a particular mobile phone. Defence counsel further pointed out that these photographs even did not show if it concerns the shop no. 2 at Race Course, which belongs to accused appellant Bal Kishan Aggarwal. If accused Bal Kishan Aggarwal was there present in the shop as is claimed by the SI Sarvesh then he could have been covered in any of these photographs. Counsel further pointed out that all the three photographs do not sincronize with the situation in the shop on a particular time if photographs have been taken on a particular point of time. Counsel submitted that reliance on such an evidence in the form of photographs there is an illegality in this conviction judgment. I do agree with these submissions of Ld. counsel. Photographs have not been proved in accordance with law . SI Sarvesh PW1 even did not depose in evidence if appellant accused Bal Kishan Aggarwal present in court in this court was the person carrying activity in that alleged eating place. In cross CA No. 56/10 Page 5 of 7 Page No. 6 examination SI deposed that there were some several employee serving the customers but no other independent evidence has been joined to prove all these facts.
It is specific defence of accused appellant that he was selling articles like biscuit , snacks strictly in terms of a licence granted by NDMC. To my view, evidence of SI Sarvesh in this case fails to prove and establish the fact that an eating house was being run from shop no. 2, Race Course, New Delhi and that appellant accused was the person carrying any such activity of eating house and that was in violation of provisions of D.P. Act. Conviction judgment holding contrary is an illegality, in appropriate appreciation of the evidence and consequently this conviction judgment dt. 21.12.2010 is liable to be set aside.
Setting aside of this conviction , however will not be construed as appellant entitle to run an activity of eating house from the premises in question unless and until a certificate of registration is obtained from the concerned authority/deptt. of Delhi Police. Appeal is allowed and conviction judgment is set aside.
Trial court record along with copy of this order be placed before Ld. MM and then revision file be consigned to record room.
Announced in the Open (J.R.ARYAN) court on 01/04/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
CA No. 56/10 Page 6 of 7