Delhi District Court
State vs Irshad Ali S/O Iqbal R/O H. No.209, Saral on 22 November, 2011
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0376352007
Sessions Case No. 231/2007
Assigned to Sessions. 11.07.2007
Arguments heard on 16.11.2011
Date of judgment. 22.11.2011
FIR No. 97/2007
State Vs Irshad Ali s/o Iqbal r/o H. No.209, Saral
Kunj, Loni, Ghaziabad, U.P.
Police Station Seelampur
Under Section 25/54/59 Arms Act & Section 5 Explosive
Substance Act. and S.9 (B) of Explosive
Act.
JUDGMENT
1. A challan vide FIR No. 97/2007 dated 26.02.2007 u/s 25/54/59 Arms Act and S 5 Explosive Substance Act and S9B Explosive Act has been filed by SHO of Police Station Seelampur for the prosecution of accused Irshad Ali in the court of ld. Metropolitan Magistrate and Trial Court after compliance of section 207 Cr. PC committed this case for trial before this court.
2. Case of prosecution is that on 26.02.2007 at 02:30 p.m. ASI Budh Prakash has received a secret information through a secret informer that one person by the name of Irshad, who used to manufacture illicit ammunition and used to supply the same in Delhi area would come in Delhi. On this information, ASI Budh Prakash had constituted a raiding party consisting himself, HC Narender, Ct. SC No.231/2007 State Vs. Irshad Ali 1/25 Naresh, Ct. Satbir and secret informer. They reached at the spot i.e. Near Seelampur Metro Station. At about 4:30 p.m., secret informer point out towards a person who was stood near service road carrying a school bag of green colour on his left shoulder and on enquiry he told to ASI Budh Prakash that he is Irshad. ASI Budh Prakash with the help of HC Narender had apprehended him and his bag was checked. During the search of bag it was found containing six tied plastic polythene bag of black colour, plastic bag was opened and each bag was found containing 20 cartridges each. ASI Budh Prakash had prepared sketch of sample cartridges vide Ex.PW3/B to PW3/F. IO had seized all the articles as well as green colour bag vide seizure memo Ex.PW3/A. Thereafter, ASI Budh Prakash had prepared a rukka Ex.PW5/A and got registered FIR No. 97/2007 u/s 25/54/59 Arms Act against the accused. Accordingly, the accused was arrested and he was charged u/s 25/54/59 Arms Act and S5 of Explosive Act and S9B of Explosive Substance Act.
CHARGE
3. On the basis of material available on record ld. Predecessor of this court vide order dated 27.03.2008 framed a charge against accused Irshad Ali for the offences punishable u/s 25/54/59 Arms Act as well as Section 9B of Explosives Act and Section 5 Explosive Substance Act to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES
4. In order to prove its case prosecution has examined 13 witnesses namely PW1 Narender Kumar, PW2 Smt. Pushpa, PW3 Ct. Naresh, PW4 Ct. Satbir, PW5 ASI Budh Prakash, PW6 ASI Rajender, PW7 Inspector Bhaskar Sharma, PW8 B.P. SC No.231/2007 State Vs. Irshad Ali 2/25 Singh, Scientific Officer, PW9 HC Murari Lal, PW10 Sh. M. Bhaskar, PW11 Sh. A.R. Arora, Senior Scientific Officer, PW12 Sh. S.K. Khosla and PW13 Sh. Neeraj Thakur.
5. PW1 Narender Kumar. This witness has been declared hostile by Ld. APP for the State. Even in cross examination by Ld. APP for the State, this witness has not supported the case of prosecution and his statement mark X was confronted.
6. PW2 Smt. Pushpa is a material witness being landlady of accused. This witness has deposed that she had given her house on rent @ Rs.900/ per month to the accused on 25.07.2006 for a period of eleven months and it was mentioned in the agreement that if she want to sell the aforesaid house accused will have to vacate the premises. This witness has proved photocopy of document Ex.PW2/A and PW2/B. This witness did not support to the case prosecution and had been declared hostile by Ld. APP for the State. Even in her cross examination by ld. APP for the State this witness has not supported the case of prosecution. This witness was cross examined by Ld. defence counsel. In her cross examination by ld. Defence counsel this witness has deposed that she had not seen any factory at the rented premises of manufacturing cartridges nor the same is existed there. If she would have found the said factory in her rented premises to the accused she would have informed the police immediately and got arrested the accused.
7. PW3 Ct. Naresh. This witness is the member of raiding party and has been in investigation from it beginning point up to the end point. This witness has deposed that on 26.02.2007 a secret informer came at Crime Branch office and informed ASI Budh Prakash that one person by the name of Irshad will come near SC No.231/2007 State Vs. Irshad Ali 3/25 Seelampur Metro Station to finalize deal regarding ammunition and if a raid is organized he can be apprehended. This witness has further deposed that this information was told to Inspector Sukhvinder Singh of Crime Branch and ASI Budh Prakash has formed a raiding party including HC Narender, Ct. Satbeer, tempo driver Ct. Deewan and himself and had reached at Dharam Pura, Near Seelampur Metro Station in tempo No. DL1CF4280. This witness has further deposed that at about 4:30 p.m. secret informer pointed towards a person who was carrying a green colour bag and ASI Budh Prakash and HC Narender had apprehended Irshad Ali and his bag was searched which was containing 5 black polythenes carry bag. Each polythene was containing 20 cartridges each. From each polythene a cartridge was separated for sample.
8. In his presence IO had prepared rukka and this witness took the same to police station Seelampur and got the FIR registered there and came at the spot and handed over copy of FIR and rukka in original to SI Bhaskar Sharma. This witness has further deposed that pulandas as well as the bag containing cartridges recovered from accused were taken into possession vide seizure memo Ex.PW3/A. This witness has proved sketch of cartridges vide Ex.PW3/B, PW3/C, PW3/D, PW3/E and PW3/F.
9. This witness has further deposed that disclosure statement Ex.PW3/G of accused was recorded by SI Bhaskar and in pursuance to disclosure, accused led the police party to his house at Saral Kunj, House No.209, Loni, Ghaziabad, U.P. and got recovered 70 live cartridges, one kharad machine, one bhatti, gun powder, potash and some long tools and some small boxes and same were taken into possession vide seizure memo Ex.PW3/H. This witness was cross examined by Ld. APP for the State on some material facts. In his cross examination by Ld. APP for the SC No.231/2007 State Vs. Irshad Ali 4/25 State, this witness has proved arrest memo and personal search memo of accused Irshad Ali vide Ex.PW3/J and PW3/K.
10.This witness has correctly identified one green colour tripal bag Ex.P1, five pullandas containing 19 cartridges collectively Ex.P2, one brass metal small instrument Ex.P3, brass covers and patakhas collectively Ex.P4, one sarachi of big size and two of small size Ex.P5, two iron bar of big size, one is having joint and a cub attached with the same Ex.P6 colly, one iron instrument attached with two iron bars colly Ex.P7, one plastic dabba containing white powder Ex.P8, gun powder Ex.P9, gun powder Ex.P10, three small instruments Ex.P11, two empty cartridges Ex.P12 colly, one plastic dabba which containing white powder Ex.P13, one small yellow colour plastic box containing saleti colour powder Ex.P14, another sealed pullada containing gun powder Ex.PW15, 68 live cartridges Ex.P16 colly, 239 brass cover of cartridges Ex.P17 colly, 59 golden colour bars small size Ex.P18 colly, one big size machine Ex.P19 and one bhatti Ex.P20. This witness has been cross examined by Ld. defence counsel at length.
11.PW4 Ct. Satbir and PW5 ASI Budh Prakash are also the member of raiding team. They had deposed on the same footing as deposed by PW3 Ct. Naresh. PW5 ASI Budh Prakash with the help of HC Narender had apprehended accused Irshad Ali and his bag was checked. During the search of bag it was found containing six tied plastic polythene bag of black colour, plastic bag was opened and each bag was found containing 20 cartridges each. ASI Budh Prakash had prepared sketch of sample cartridges vide Ex.PW3/B to PW3/F. ASI Budh Prakash had seized all the articles as well as green colour bag vide seizure memo Ex.PW3/A. Thereafter, ASI Budh Prakash had prepared a rukka Ex.PW5/A and got registered FIR No. 97/2007 u/s 25/54/59 Arms Act against the accused. SC No.231/2007 State Vs. Irshad Ali 5/25
12.PW6 ASI Rajender. This is the witness of depositing of parcels at CFSL office at Chandigarh. This witness has deposed that on 30.03.2007 he had taken 9 sealed parcels from malkhana of police station Seelampur and deposited 3 parcels at CFSL Office at Chandigarh and the remaining 6 parcels were not deposited by the CFSL office and he returned the same to MHC (M) police station Seelampur. This witness has been cross examined by ld. Defence counsel.
13.PW7 Inspector Bhaskar Sharma is a material witness being Investigating Officer. This witness has deposed that on 26.02.2007 he had received information from Duty Officer of police station Seelampur that the investigation of the present case was marked to him and he had reached at the spot Metro Station Seelampur where at around 9:00 p.m. ASI Budh Prakash, HC Narender, Ct. Naresh and Ct. Satbir met him and ASI Budh Prakash had produced accused Irshad before him. This witness has further deposed that ASI Budh Prakash had handed over to him one green colour school bag containing 6 sealed parcel, out of these 5 parcels were containing 19 cartridges each and 1 parcel was containing sample of cartridges. This witness had prepared site plan Ex.PW7/A at the instance of ASI Budh Prakash.
14.This witness has proved arrest memo, personal search memo and disclosure statement of accused. This witness has deposed that in pursuance to disclosure of accused the police team raided his premises at Loni House No.209, Saral Kunj and accused had got recovered one brown colour bag containing 70 cartridges, out of which 2 cartridges were randomly selected for sample and kept them in a transparent polythene and sealed with the seal of BS. Accused has also got SC No.231/2007 State Vs. Irshad Ali 6/25 recovered furnace about 2 ft. height, 55 copper rods of about 10' long, one die, 3 seals of "1315 KF 8 MM", one iron rod around 2 ft., 3 scissors and one bowl with a rod handle.
15.During the course of investigation, accused has got recovered one Kharad Machine which used for preparing cartridges. This witness has further deposed that one polythene containing 240 copper rods of about 2.2' were also recovered which were kept in poly jar and sealed with the seal of BS.
16.This witness has further deposed that one plastic container of Madhu Sudan which was containing about 750 gram of Potassium Chlorate, another yellow colour plastic container of Desi Ghee which was containing 440 gms Potassium Chlorate, one blue colour polythene containing 355 gms of Gun Powder, one black colour polythene containing 365 gm of Gun Powder, one red colour polythene containing 310 gam of Gun Powder, one yellow colour plastic container of multi grade engine oil containing 150 gm of Gun Powder, one copper instrument which is used to polish the cartridge case and one small plastic container of Baidhyanath which was containing small brust sound body (Body crackers) used as ignitions in the cartridges were recovered and aforesaid articles were sealed through seizure memo Ex.PW3/H. This witness has also prepared sketches of the sample cartridges recovered from the said house.
17.During the course of investigation, IO had seized rent agreement and a document regarding the vacation of said house vide seizure memo Ex.PW2/B and PW7/B.
18.This witness had obtained permission of DCP/Crime and Railways u/s 39 Arms Act vide mark Z. This witness had also obtained permission from District SC No.231/2007 State Vs. Irshad Ali 7/25 Magistrate, Divisional Commissioner, Delhi for Explosive Act against accused Irshad dated 27.03.2008 vide mark Z1.
19.This witness had identified one green colour Tripal bag Ex.P1 and five pullandas sealed with the seal of BP vide Ex.P2 collectively.
20.This witness had identified articles Ex.P3 to P20 which were seized by him from the house of accused.
21.This witness was cross examined by ld. Defence counsel at length. In his cross examination this witness admits that the area of apprehending of accused is densely populated and he had not recorded statement of any public persons at the spot.
22.PW8 B.P. Singh, Sr. Scientific Officer (Ballistics), CFSL, Chandigarh. This witness has proved his report Ex.PW8/A dated 20.04.2007. This witness was cross examined by Ld. Defence counsel.
23.PW9 HC Murari Lal. This witness has proved copy of FIR Ex.PW5/A1 on behalf of ASI Suresh Kumar.
24.This witness has deposed that on 26.02.2007 ASI Budh Prakash had deposited five sealed parcels containing exhibits of the present case along with five sample sealed parcels and one FSL form and entries has been made as per seizure memo at serial No.3814 in Register No.19 vide Ex.PW9/A. SC No.231/2007 State Vs. Irshad Ali 8/25
25.This witness has further deposed that on the same day SI Bhaskar had deposited 11 sealed parcels containing exhibits of this case along with 11 sample sealed parcels and one CFSL form in malkhana and entries in this regard has been made at serial No.3815 in Register No.19 vide Ex.PW9/B.
26.This witness has further deposed that on 30.03.2007, 08 sealed sample parcels along with CFSL form and forwarding letter were sent to CFSL, Chandigarh for analysis through HC Rajender vide RC No.196/21/2007 Ex.PW9/C and entry in this regard has been made at serial No.3814 in register No.19 vide Ex.PW9/D.
27.This witness has further deposed that on 19.11.2007, 05 sealed sample parcels along with one sample seal, FSL form and forwarding letter were sent to FSL, Lodhi Colony, New Delhi, for analysis through HC Lakhinder vide RC N.140/21/2007 vide Ex.PW9/E. This witness had also made endorsement to this effect against entry No.3815 in register No.19 vide Ex.PW9/F. This witness was cross examined by Ld. Defence counsel.
28.PW10 Sh. Bhaskar, Dy. Director (Physics), CFSL, Chandigarh. This witness has proved his report dated 06.07.2007 vide Ex.PW10/A. This witness was cross examined by Ld. Defence counsel.
29.PW11 Sh. A.R. Arora, Senior Scientific Officer, GradeI, Ballisticscum Assistant Chemical Examiner. This witness has proved his detailed report Ex.PW11/A. This witness was cross examined by ld. defence counsel. SC No.231/2007 State Vs. Irshad Ali 9/25
30.PW12 Sh. S.K. Khosla, Retired SDM1. This witness has proved sanction order Ex.PW12/A dated 27.03.2008 on behalf of Ms. Nutan Guha Biswas, the then District Magistrate/Divisional Commissioner, Delhi whereby sanction was granted to prosecute accused Irshad Ali u/s 5 of Explosive Substances Act.
31.PW13 Sh. Neeraj Thakur, Dy. Director, Ministry of Home Affairs. This witness has proved sanction order Ex.PW13/A for prosecution of accused U/s 39 Arms Act.
STATEMENT OF ACCUSED U/S 313 CR.P.C.:
32.After prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded, accused denied all the allegations, circumstances and evidences put to him. In his statement u/s 313 Cr. P.C. accused Irshad Ali has deposed that he is innocent and he was lifted by the police from his house i.e. House No.209, Saral Kunj, Ghaziabad, U.P. and was kept in the office of Special Team Crime Branch, Prashant Vihar, Delhi where his signatures were obtained on some papers by the police. This witness has further deposed that nothing was recovered either from his possession or at his instance by the police Accused has further deposed that police officials had planted several items upon him. Accused has preferred to lead D.E. In his support, accused has examined DW1 Smt. Sitara, DW2 Sh. Vinod Kumar and DW3 Sh. Israr Babu.
DEFENCE WITNESSES:
33.DW1 Smt. Sitara. This witness has deposed that on 26.02.2007 at about 08:00 a.m. when her husband was taking bath, two persons claiming to be police officials came there and took her husband on the pretext that two officers are SC No.231/2007 State Vs. Irshad Ali 10/25 calling him outside and after sometime she came outside and found her husband was not there. Thereafter, she informed to her inlaws on telephone and on next date she came to know through newspaper that her husband had been arrested by the police. This witness has further deposed that thereafter, her landlady Pushpa Devi had got vacated her rented house from her. This witness has further deposed that during that period her husband was in the profession of jeans manufacturing by having six to seven workers with him. This witness has further deposed that on that day police did not seize or recover anything from her residence.
34.DW2 Sh. Vinod Kumar has deposed that he had not brought call details report and location chart of mobile No.9868206008 and 9868826630 as the same has been destroyed. This witness has proved CDR record on the aforesaid fact vide Ex.DW2/A.
35.DW3 Sh. Israr Babu has has proved certified prepaid application form of Mobile No.9899768842 in the name of Budh Prakash vide Ex.PW3/A, his ration card Ex.DW3/B and identity card Ex.DW3/C.
36.Thereafter, D.E. was closed and case was fixed for arguments. ARGUMENTS
37.Ld. APP for the State argued and submitted that there are charges against the accused u/s 25 Arms Act and Section 9(B) of Explosive and 5 of Substance Act. Ld. APP for the further argued that quantity of ammunition recovered is so high. SC No.231/2007 State Vs. Irshad Ali 11/25
38.Ld. APP for the State further argued that on receiving secret information, accused was apprehended by ASI Budh Prakash with the help of HC Narender on the pointing out of secret informer on 26.02.2007 at about 04:30 p.m. from Near Seelampur Flyover, in front of Metro Station and from the possession of accused one green colour bag Ex.P1 containing six tied plastic polythene bags of black colour Ex.P2, each plastic bag was containing 20 cartridges were recovered.
39.Ld. APP for the State has further submitted that ASI Budh Prakash had prepared rukka under supervision of Inspector Sukhbir Singh. Thereafter, investigation was handed over to Inspector Bhaskar Sharma and accused had got recovered one plastic dibbi containing brass cover, 3 Iron Metals catcher, plastic dibi containing gun powder, white powder etc.
40. Ld. APP for the state has further submitted that PW Ct. Naresh, Satbir and PW7 Inspector Bhaskar are the material witnesses.
41.PW Narender and Pushpa Devi did not support the case of prosecution and PW Pushpa and Narender are not the witness of recovery.
42.PW6 ASI Rajender is a formal witness who took parcels to FSL. PW7 expert witness,
43.PW10 M. Bhaskar, Dy. Director has proved entire powder is explosive.
44.PW12 S.K. Khosla has proved sanction order u/s 195 Cr.P.C. SC No.231/2007 State Vs. Irshad Ali 12/25
45.PW13 Sh. Neeraj Thakur, DCP, Crime and Railway has proved sanction order to prosecute accused u/s 25 of Arms Act.
46.Ld. APP for the State has further submitted that testimony of police officials is reliable. Ld. APP for the State further argued that even there is no public witness of recovery of green bag prosecution has successfully proved its case beyond reasonable doubts against the accused and Ld. APP for the State has prayed to convict the accused under the sections for which he has been charged.
47.On the other hand, ld. counsel for the accused argued at length and submitted that PW1 Narender and PW2 Pushpa have been declared hostile by Ld. APP for the State and even in their cross examination they had not supported the case of prosecution.
48.Ld. counsel for accused further argued that Driver Diwan Chand has not been examined.
49.Ld. counsel for accused further argued that PW ASI Budh Prakash states that he was standing at point X of site plan whereas PW Naresh states that PW ASI Budh Prakash was standing at point X1.
50.Ld. counsel for accused further argued that it is admitted case of prosecution that no public witnesses inspite of densely populated area and presence of other govt. and police officials and there is no signature on memo of public witnesses. SC No.231/2007 State Vs. Irshad Ali 13/25
51. Ld. counsel for accused has further submitted that ammunition have been planted upon the accused and accused was lifted from his house and has been falsely implicated in the present case.
52.Ld. counsel for accused has further submitted that PW Ct. Satbir, PW5 and PW4 has deposed different standing position. PW4 states that he was standing near Dharampura bus stand.
53.PW4 states that SI Bhaskar had come at the place of recovery at 7:00 p.m. and he had prepared the documents of recovers at Seealmpur, as per rukka information of the incident was sent to senior officials.
54.Ld. counsel for accused persons states that two PWs from Loni, U.P. who states that they had not seen any machine of making arms or ammunition rather they had seen sewing machine. Photographs of the same could have been taken but there is nothing to connect the accused with present case. Neither signature of two PWs from Loni were also not obtained on recovery memo. Lathe machine as produced by prosecution was not in working condition. No raw material was deposited with MHC(M) neither die has been seized. On these grounds, Ld. Counsel for accused has argued that prosecution has miserably failed to prove its case.
PERUSAL OF RECORD AND OPINION:
55.Arguments heard. Record perused. On perusal of record, it is revealed that charge sheet reflects that on receiving secret information, accused Irshad Ali was apprehended by ASI Budh Prakash with the help of HC Narender on the pointing SC No.231/2007 State Vs. Irshad Ali 14/25 out of secret informer on 26.02.2007 at about 04:30 p.m. from Near Seelampur Flyover, in front of Metro Station and from the possession of accused one green colour bag Ex.P1 containing six tied plastic polythene bags of black colour Ex.P2, each plastic bag was containing 20 cartridges were recovered.
56.On perusal of record, it is further revealed that ASI Budh Prakash had prepared sketches of sample cartridges separately Ex.PW3/B to PW3/F and seized all the articles as well as green colour bag vide seizure memo Ex.PW3/A.
57.On perusal of record, it is further revealed that Inspector Bhaskar Sharma had prepared site plan Ex.PW7/A at the instance of ASI Budh Prakash.
58.On perusal of record, it is further revealed that ASI Budh Prakash had prepared rukka Ex.PW5/A and sent Ct. Naresh to police station Seelampur for registration of FIR. Accordingly, FIR No.97/2007 u/s 25/54/59 Arms Act was registered against accused and accused was arrested vide arrest memo Ex.PW3/J and personal search of accused was conducted vide personal search memo Ex.PW3/K.
59.On perusal of record, it is further revealed that ASI Bhaskar Sharma had recorded disclosure statement of accused Irshad Ex.PW3/G and in pursuance of his disclosure statement accused had got recovered one brown colour bag containing 70 cartridges Ex.P16 from his premises No.209, Saralkunj, Loni, Ghaziabad UP and one room furnace of about 2 feet height was recovered and from the place near room furnace, 55 copper rods of about 10' were recovered, one iron rod around 2 ft. and 3 scissors and one bowl with a rod handle, one Kharad Machine which was used for preparing cartridges, one polythene containing 240 copper rods of about 2.2', one plastic container of Madhu Sudan which was containing SC No.231/2007 State Vs. Irshad Ali 15/25 about 750 gm of Potassium Chlorate, yellow colour plastic container of Desi Ghee containing 440 gm of Potassium Chlorate, one blue colour polythene containing 355 gm of Gun Powder, one black colour polythene containing 365 gm of Gun Powder, one red colour polythene containing 310 gm of Gun Powder, one yellow colour plastic container of multi grade engine oil containing 150 gm of Gun Powder, one copper instrument which was used to polish the cartridge cases, one small plastic container of Baidhyanath containing small brust sound body (body crackers) used to igniter in the cartridges were recovered and all the aforesaid articles were seized vide seizure memo Ex.PW3/H by the IO.
60.On perusal of record, it is further revealed that during the investigation IO had seized rent agreement and document Ex.PW2/B regarding the vacation of house vide seizure memo Ex.PW7/B but landlady PW Pushpa Devi who has been examined as PW2 did not support the case of prosecution even in her cross examination by Ld. APP she did not depose in support of prosecution case.
61. On perusal of record, it is further revealed that IO had obtained the sanction order from DCP/Crime and Railways u/s 39 Arms Act mark Z to prosecute the accused for offence u/s Arms Act which appears that same had been granted without going through the record available on case file.
62.On perusal of record, it is further revealed that IO had obtained permission from District Magistrate, Divisional Commissioner, Delhi, Govt of NCT of Delhi for explosive act mark 'Z1' against accused.
SC No.231/2007 State Vs. Irshad Ali 16/25
63.On perusal of record, it is further revealed that PW8 B.P. Singh, Sr. Scientific Officer (Ballistics) has proved his detailed report Ex.PW8/A.
64.On perusal of record, it is further revealed that on 19.11.2007 six sealed parcels containing gun powder material etc. were received in CFSL, CBI, New Delhi which were examined by ballistic expert Sh. A.R. Arora and he had proved his report Ex.PW11/A.
65.On perusal of record, it is revealed that on 27.03.2008 Ms. Nutan Guha Biswas, the then Magistrate/Divisional Commissioner accorded sanction order Ex.PW12/A to prosecute accused u/s 5 of Explosive Substance Act and copies of the same were forwarded by Sh. S.K. Khosla, DCP, Head Quarter, Delhi Police, DCP Crime and Railway and Director of Prosecution for necessary action.
66.On perusal of record, it is further revealed that on 24.04.2007 Sh. Neeraj Thakur, DCP, Crime and Railway, New Delhi had accorded sanction order Ex.PW13/A to prosecute accused for offence u/s 25 of Arms Act.
67.On perusal of record, it is further revealed that both DW1 Smt. Sitara has deposed that on 26.02.2007 at about 8:00 a.m. Two police officials came at her house and took her husband on the pretext that two officers were calling him outside and thereafter she came to know through newspaper that her husband had been arrested by the police. This witness has further deposed that on that day police did not seize or recover anything from his residence.
68.On perusal of record, it is further revealed that DW2 Sh. Vinod has proved the CDR Record vide Ex.DW2/A and DW3 Sh. Israr Babu, Alternate Nodal Officer, SC No.231/2007 State Vs. Irshad Ali 17/25 Vodafone, ESSAR has proved certified prepaid application form of Mobile No.9899768842 in the name of Budh Prakash vide Ex.PW3/A, his ration card Ex.DW3/B and identity card Ex.DW3/C.
69. It is further reveals that Ct. Diwan Chand who had been the driver of police vehicle has not been examined. Further Inspector Crime branch Sukhvir Singh who is said to directed ASI Budh Prakash and under his supervision site plan was prepared. He has also not been examined by the prosecution.
70. It is further revealed that Inspector Bhaskar sharma has deposed that he reached at the spot at about 9:00 p.m. whereas PW Ct. Naresh states that Inspector Bhaskar Sharma has reached at the spot at 7:00 p.m. Testimony of Inspector Bhaskar Sharma is not corroborated with PW Ct. Naresh. Hence, not reliable.
71.Further on perusal of statement of Ct. Naresh he depose differently from SI Bhaskar Sharma. PW Ct. Naresh who has been witness of recovery did not mention about the recovery of 55 copper rods of 10' long or about 3 dye or about recovery of 4 plastic containers which are found in the statement of PW SI Bhaskar Sharma. Even Inspector Bhaskar Sharma could not disclose the name of person who took rukka to police station.
72.Further as per PW ASI Budh Prakash six black colour polythene bags from the possession of accused were recovered whereas only 5 sample from each were taken which means testimony of PW ASI Budh Prakash is not reliable as non corroborating with the testimony of PW Inspector Bhaskar Sharma and Ct. Naresh.
SC No.231/2007 State Vs. Irshad Ali 18/25
73.Further, Inspector Bhaskar Sharma could not disclose about the location of raiding team officials as per the site plan. PW HC Satbir states that he had taken his position at Dharampura Bus Stand and PW ASI Budh Prakash states that he had taken his position behind the pillars of Seelampur flyover but none of them could disclose their position of raiding team member. It is also highly improbable when there was no specific information about the place where accused would come it had not been brought on record that how police came to know that accused is coming at Seelampur.
74.Further, if it is presumed for a moment that accused would come at Seelampur then why PW Satbir took his position at Dharampura Bus Stand which is about half kilometer from Seelampur Flyover.
75.Inspite the fact that the area of arrest of accused is highly densely populated area and there is no problem to make the public as a witness even then no efforts had been made by the IO to make the public witness to the recovery from the possession of accused or at his instance.
76.Before reaching any conclusion, let relevant section 25 Arms Act as well as Section 9B of Explosives Act and Section 5 Explosive Substance Act be reproduced which are as under :
25. Punishment for certain offences. Whoever acquires, has in possession or carries any firearm or ammunition in contravention of section 3;
Section 5 Explosive Substance Act. Punishment for making or possessing explosives under suspicious circumstances. Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object shall, unless he can show that he made it or had it SC No.231/2007 State Vs. Irshad Ali 19/25 in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to fourteen years, to which fine may be added or with imprisonment for a term which may extend to five years, to which fine may be added.
Ingredients of the offence. It was observed by their Lordships of the Supreme Court that in order to bring home the offence under Sec.5 of the Explosive Substances Act, 1908 the prosecution has to prove (i) that the substance in question is explosive substance, (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
Section 9B of Explosive Act. Punishment for certain offences. (1) Whoever, in contravention of rules made under Sec.5 or of the conditions of a licence granted under the said rules
(a) manufactures, imports or exports any explosive shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees or with both;
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) in any other case with fine which may extend to one thousand rupees.
(2) Whoever in contravention of a notification issued under section 6. manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and master of the aircraft, in which the explosive is imported shall in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.
(3)Whoever, (a) manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of Cl. (a) of Sec. 6A; or
(b) sells, delivers or despatches any explosive in contravention of the provisions of Cl. (b) of that section, shall be punishable with imprisonment for a term which may extend to three years or with the fine or with both; or
(c) in contravention of provisions of Sec. 8 fails to give notice of any accident shall be punishable,
(i) with fine which may extend to five hundred rupees, or
(ii) if the accident is attended by loss of human life, with imprisonment for a term which may extend to three months or with fine or with both.
SC No.231/2007 State Vs. Irshad Ali 20/25
77.As per the case of prosecution, PW ASI Budh Prakash who had formed a raiding party and had apprehended the accused Irshad Ali with the help of other members. On complaint of ASI Budh Prakash the present case was registered and no public witness was made available to the recovery from the possession of accused and only police officials are the witness in the present case. Public witnesses Smt. Pushpa and Sh. Narender has been declared hostile by the prosecution.
78.Hon'ble Supreme Court in case titled as 'Sans Pal Singh Vs. State of Delhi 1999 Cri. L.J.19' has held that :
"Recovery of country made pistol and live cartridge from the pocket of the accused based only on evidence of police - No public witnesses, even though available, associated to witness recovery Conviction Cannot be maintained. Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witness. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW5 HC Sat Pal singh, it is clear that the police party did not ask any public witness to be witness at the time of search of the accused. Likewise, PW6 SI Mahipal Singh has also stated that no public witness was joined at the time of the search of the accused even though a number of persons were passing through at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offence charged. We, therefore, order his acquittal. He is in jail. He be set at liberty forthwith."
79.Again Hon'ble Supreme Court in 'Megha Singh Vs. State of Haryana, 1995 Cri. L.J.' in which accused was arrested by HC of Police who recovered pistol SC No.231/2007 State Vs. Irshad Ali 21/25 and cartridges from accused It was on his complaint that formal FIR registered - HC being complainant should not have proceeded with investigation - Such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial trial.
"It is the prosecution case that on 29th September, 1985 HC Siri Chand (PW3) and Ct. Bhup Singh (PW2) and other police personnel were present on the Kacha route connecting village Faggu with village Rohan. At about 12.00 noon the accused was spotted while coming from the side of village Rohan. As the accused after seeing the police party tried to cross through the field, the police party became suspicious and he was intercepted and the HC Siri Chand PW3 thereafter searched the person of the accused and on search a countrymade pistol Ex.P1 was recovered from the right dub of his chadar and three live cartridges Exts. P2 to P4 wee also recovered from the right side pocket of his shirt. The said pistol and the cartridges were possessed by the accused without any valid licence. After recovery of the said pistol and the cartridges the same were seized vide recovery memo Ex.PC and a rukka Ex.PD with regard to the recovery was prepared and sent to the police station on the basis of which FIR Ex.PD/1 was recorded by SI of Police Charanjit Singh. The prosecution case sought to be proved by the said HC Siri Chand PW3 and Bhup Singh PW2. No independent witness was examined to support the prosecution case."
80.Further in case titled as 'Pawan Kumar Vs. Delhi Administration, 1989 Cri.L.J.127', Hon'ble Delhi High Court has held that large number of people were present at the time of recovery No independent witness produced and no attempt made to join independent witness Statement of official witnesses could not be relied.
"6.On the second aspect also, Miss Khanna has something to say, PW11, ASI Jagbir Singh is the person who in the company of PW 15, Kalam Singh and PW21 Kanchan Dev, HC apprehended accused Pawan Kumar and from his possession the knife (Ex.P1) was recovered. On the recovery memo, Jagbir Singh obtained the signatures of Kalam Singh and Jai Bhagwan constables. Jai Bhagwan has not been produced. Kalam Singh had to admit that at the time of the arrest and recovery of the knife, there was a lot of SC No.231/2007 State Vs. Irshad Ali 22/25 rush of public at busstop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh no public person was present there. It hardly stands to reason that at a place like a busstop near Subhash Bazar; there would be no person present at. A crucial time like 7.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Her is a case where it re no efforts was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It play be that there an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I should have an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused."
81.Since material public witnesses PW1 Narender Kumar and PW2 Smt. Pushpa Devi have not supported the case of prosecution. PW1 Narender Kumar in his cross examination has deposed that he did not see any factory of manufacturing of cartridges in the house of Pushpa Devi and police did not seize any arms, ammunition and lathe machine from the house of Pushpa Devi in his presence in the year 2007. Three/four machines were installed at the premises of Pushpa Devi of jeans stitching.
82.PW2 Smt. Pushpa Devi in her cross examination by Ld. defence counsel has also deposed that she had not seen any factory at the rented premises for manufacturing of cartridges nor the same is existed there. This witness has further deposed that if she had found the said factory in his rented premises, she would have informed the police immediately and got arrested the accused. SC No.231/2007 State Vs. Irshad Ali 23/25
83.PW5 ASI Budh Prakash who states in his statement before the court that informer had told him that one person in the name of Irshad who used to supply illicit ammunition in the Delhi area but as per Inspector Bhaskar Sharma he did not mentioned that accused would come in particular area of Delhi whereas IO had arrested him from Seelampur which is not corroborated with the statement of ASI Budh Prakash who is said to be complainant in the present case. Moreover, no public witness could be procured to be a witness at the time of recovery of bag from the possession of accused Irshad Ali which throw doubt upon the case of prosecution especially when the area from where accused was apprehended is densely populated area and it cannot be believed that no public person could have been procured to be witness for the recovery. Without disclosing the area by secret informer PW ASI Budh Prakash procured raiding team and conducted raid at New Seelampur Metro station and moreover raiding team was placed from Seelampur Metro Station to Dharampura. Distance of these two points is approximately half kilometer.
84.Hence, into the fact of charge u/s 25/54/59 Arms Act as well as Section 9B of Explosives Act and Section 5 Explosive Substance Act are concerned, since there are only police officials witnesses to these recoveries that cannot be considered to be a sole basis for conviction of accused. According to story of prosecution, it is clear on record that public persons were present at spot but Investigating Officer has failed to make them witnesses in this case and submissions of Ld. APP for state that prosecution has proved its case beyond reasonable doubt cannot be considered. The conviction of accused cannot be solely based on the testimonies of police officials and recovery of ammunition from accused by police officials in absence of any public witness also cannot be considered as concrete evidence. In terms of judgments as discussed above in order to prove the recovery of any SC No.231/2007 State Vs. Irshad Ali 24/25 cartridges/ammunition, the seizure memo should have been signed by public witness. Moreover, there is major contradiction in the testimonies of police officials.
85.In light of these observations and judgments and in view of the submissions and arguments, this court is of the considered view that under the facts and circumstances as discussed above and hearing the counsel for parties, this court do not find that prosecution has proved its case beyond reasonable doubt and further this court do not find any merit in the arguments of Ld. APP for state to convict the accused u/s 25/54/59 Arms Act as well as Section 9B of Explosives Act and Section 5 Explosive Substance Act as requirement of Law have not been met out. Hence, this court acquit the accused Irshad Ali from the charges u/s 25/54/59 Arms Act as well as Section 9B of Explosives Act and Section 5 Explosive Substance Act in absence of sufficient evidence by giving him benefit of doubt.
86.In terms of directions of Section 437A Cr.P.C., accused Irshad Ali is directed to execute bail bond in sum of Rs.20,000/ with one surety in the like amount for the period of six months.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON THIS 22.11.2011 (RAMESH KUMARII) ASJ01/ North - East Karkardooma Courts Delhi SC No.231/2007 State Vs. Irshad Ali 25/25
5. SC No.231/2007 State Vs. Irshad Ali 26/25