Delhi District Court
Sh. Abhishek Aggarwal vs State (Nct Of Delhi) on 1 October, 2018
1
IN THE COURT OF SH.NARINDER KUMAR:SPECIAL JUDGE2
NDPS ACT:(CENTRAL DISTRICT):TIS HAZARI COURT:DELHI
Crl. Rev. No. 697/2018
Date of institution: 29.09.2018 Decided on:
01.10.2018
In the matter of :
Sh. Abhishek Aggarwal,
S/o Sh. Om Prakash Aggarwal,
R/o D13/I, Mahendru Enclave,
Delhi. .....Petitioner
Versus
State (NCT of Delhi) .....Respondent
JUDGMENT
Petitioner has challenged order dated 27.07.2018 and 15.09.2018 passed by Learned Metropolitan Magistrate in Kalandra under Section 28 read with Section 112 of Delhi Police Act (hereinafter referred to as "the Act").
2. The accusation levelled against the petitioner is that on 11.01.2018, HC Umed Singh of PS Roop Nagar visited third 2 floor of the building at plot no. 2/11, Roop Nagar, there he found running a unit of food and goods exchange being run under the name and style of M/s Laalten. As per prosecution version, at that time customers were found taking meals at the said unit. When the Head Constable inquired Sh. Abhishek Aggarwalpetitioner about license to run the eating house, he could not produce any such license.
Thereupon the Head Constable recorded DD no. 45B of even dated and ultimately presented kalandra for offence under Section 28 read with Section 112 of the Act.
3. On presentation of Kalandra, accused put in appearance before Learned Metropolitan Magistrate through Sh. Rahul Singhal, Advocate, who also filed his vakalatnama on 27.07.2018.
On the same day, learned counsel expressed to the Court that he wanted to confess guilt on behalf of the accused. Thereupon, plea of guilt was recorded when tried summarily.
In view of the confession, learned Metropolitan Magistrate held the accused guilty of the aforesaid offence and imposed sentence of fine of Rs.50/.
3On the same day, learned counsel for accused sought one month's time, on the plea that process of renewal of license was on. Matter was accordingly, adjourned to 28.08.2018.
On 28.08.2018, none appeared on behalf of the accused. Accordingly, bailable warrants were ordered to be issued against him for 15.09.2018.
4. On 15.09.2018, accusedpetitioner appeared in Court with his same counsel and put forth explanation for non appearance on the previous date. Further, it was submitted that requisite license was yet to be obtained and it was likely to be received soon. At this stage, again short adjournment was prayed for. Learned Metropolitan Magistrate, however, declined to adjourn the matter any further and directed the accused to close the eating house from the concerned authorities. At the same time, SHO was directed to file compliance report by today.
5. Present revision petition came to be filed on 29.09.2018. It was taken up on the same day because of urgency and its notice was issued to State.
46. Heard. File perused.
7. Learned Addl. PP submits that there is no illegality and irregularity in the impugned order dated 27.07.2018 and 15.09.2018 as the order of conviction and sentence have been passed on the plea of guilt.
8. In the course of arguments, learned counsel for accusedpetitioner does not dispute that learned counsel could confess guilt on behalf of the accused.
The only submission is that counsel was under the impression that only sentence of fine was going to be awarded and the Court was not going to pass any further directions.
9. It is not as case where a accused having no legal assistance confessed his guilt. Rather, confession was made on his behalf, by his Advocate. It cannot be expected that Advocate confessed guilt without knowing legal consequences or instructions.
On the basis of plea of guilt, learned Metropolitan Magistrate even though imposed penalty of fine of Rs.50/, still 5 he showed sympathy towards the accused petitioner in granting him one month's time to have the license and that too in view of the submission put forth by his counsel. This fact also goes to show that learned counsel knew the consequences. Otherwise, he would not have sought one month's time to do the needful. The legal consequence as provided under Section 112 of the Act is that the Magistrate trying such offence is required to direct the accused, in addition to the punishment, that he shall close such eating house until he obtains a license.
When the accusedpetitioner failed to comply with the directions to get the license from concerned authorities, learned Metropolitan Magistrate was fully justified in issuing directions under Section 112 (2) of the Act that he himself closes the eating house.
10. The fact remains that accused petitioner has not closed the eating house till today. Learned counsel for accused petitioner submits that actually accused - petitioner had applied for license online on 24.11.2017 for such license but that application has not so far been disposed of.
6Copy of the application forms part of the petition. Neither this fact was not brought to the notice of learned Metropolitan Magistrate nor copy of any such application was produced before Learned Metropolitan Magistrate.
11. In the given situation, Court does not find any illegality or irregularity in the impugned order vide which accused petitioner has been directed to close the eating house.
12. In the given facts and circumstances, Court deems it a fit case to return the record to the Trial Court record for being put up before Learned Metropolitan Magistrate on 03.10.2018. Thereupon Learned Trial Court shall issue directions to the office of DCP (Licensing) to submit status report as regards application, if any, submitted by the accusedpetitioner.
In case application is still pending with the concerned office/competent authority, for want of compliance with any formality at the hands of the accused, accused petitioner to comply with the same forthwith so that the application, if any, is processed. In case of noncompliance with 7 the formalities, concerned Competent Authority to dispose of the application within a week, if already not disposed of. However, accusedpetitioner to close the eating house and not open or run it until license is issued in his favour.
It is made clear that in case he does not close the eating house, Learned Metropolitan Magistrate shall be at liberty to proceed in accordance with law.
13. Trial court record be returned along with copy of this judgment. Petitioner to appear before Trial Court on 03.10.2018.
14. File of Revision Petition be consigned to Record Room.
Digitally signed by NARINDER Announced in the open Court NARINDER KUMAR st KUMAR Date: on this 01 day of October 2018 2018.10.04 17:05:14 +0530 (NARINDER KUMAR) SPECIAL JUDGE, NDPS02 (CENTRAL) TIS HAZARI COURTS, DELHI