Delhi District Court
State vs . Rajesh Narang on 28 August, 2018
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE:EAST
KARKARDOOMA COURT: DELHI
FIR No. : 338/04
PS : Gandhi Nagar
u/S : 9B Explosives Act & 113 Explosives Rules
STATE Vs. RAJESH NARANG
JUDGMENT
A Unique ID No. of the Criminal Case No. 11379/16 case B Name of the Sh. Rambir Singh complainant C Name of the accused & Rajesh Narang his parentage and S/o Sh. Prem Nath Narang address R/o X-934, Chand Mohalla, Gandhi Nagar, Delhi D Offence Complained of U/s 9B 113 IPC E Date of commission of 27.09.2004 offence.
F Date of Institution 05.07.2007
G Offence Charged 9B Explosives Act
H Plea of the accused Pleaded not Guilty
I Order Reserved on 20.08.2008
Date of Pronouncement 28.08.2008
K Final Order Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION PROSECUTION'S CASE 1 The case of the prosecution is that on 27.09.2004 at about 3.00 Pm at X-934, First Floor, Chand Mohalla, Gandhi Nagar accused Rajesh Narang was found storing/packing throw away bombs which were defined as explosives. He was also find in possession of 400 packets FIR 338/04 State Vs. Rajesh Narang 1/8 of bombs, besides 59 plastic bags which also contained throw away bombs, one plastic bag containing 120 sutli bombs, one bag containing 78 packets of throw away bombs each packet containing 90 throw away bombs and two plastic bags containing packing materials and as per CFSL report the bombs were manufactured fire works under the Explosives Act. Thereby he is alleged to have committed offence u/s 9B Explosives Act and violation of Rule 113 of Explosives Rules.
2 On the basis of these allegations and the Rukka (Ex. PW2/A) present FIR No. 338/04 (Ex. PW1/A) PS Gandhi Nagar under section 9B Explosives Act and Rule 113 Explosives Rules was lodged on 27.09.2004.
CHARGE 3 After investigation, charge-sheet under section 173 Cr. P.C was filed on 05.07.2007.
4 On the basis of the charge-sheet and after compliance of Sec.207 Cr.P.C., a charge for the offence punishable under section 9B Explosives Act was framed against accused Rajesh Narang and read out to him to which he pleaded not guilty and claimed trial on 03.06.2008.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 8 witnesses in all:
6 PW1 HC Baljeet Singh is a formal witness being the duty officer who proved the registration of present FIR as Ex. PW-1/A and endorsement made on the rukka as Ex. PW1/B. 7 PW2 SI Rambeer Singh is one of the member of the raiding party. He deposed that on 27.09.2004, while being posted at SIT Section, Crime Branch, he alongwith Insp. Harshvardhan, SI Ashok Kumar/PW8, HC FIR 338/04 State Vs. Rajesh Narang 2/8 Hari Om/PW3 and Cst. Sanjeev Kumar/PW4 were present in the area of Gandhi Nagar. At about 2.30/2.45 Pm, one secret informer met them and informed that one person namely Rajesh R/o X-934, 1 st Floor, Chand Mohalla was in possession of huge quantity of throw away bombs. On this information a raiding party was prepared . Few public persons were asked to join the raiding party but they refused. At about 3.00 pm they reached at house no X-934 where they saw accused Rajesh sitting on the floor and packing throw away bombs in packets. One throw away bomb was taken from the possession of the accused and opened in which a grey coloured explosive powder and some peices of stones were found. The packets in which the said bombs were being packed were printed with a figure of cock and Cock Brand was printed on them. 400 such packets were found. They were kept in 5 plastic kattas, tied and sealed with the seal of DS. In the room 59 plastic kattas of throw away bombs were also found, out of which 7 were of small size weighing 14 kg each while 42 were of big size weighing 21 kg each. Out of these 250gm of throw away bombs wer taken out as sample from 5 kattas which were seperately sealed with the seal of DS. 59 plastic katta were seperstely sealed with the seal of DS. One plastic katta was also found containing 120 packets of sutli bombs out of which 10 sutli bombs were taken out as a sample and seperately sealed in a pullanda with the seal of DS. The remaining katta of sutli bombs was also sealed. Another katta containing 78 packets having 90 throw away bombs each was also recovered and sealed with the seal of DS.Two kattas containing packing material were also recovered and sealed with the seal of DS. The entire case property was taken into police possession vide seizure memo Ex. PW1/A. 8 The seal after use was handed over to PW4. He prepared the rukka Ex PW2/A and got the FIR registered through PW4. After registration FIR 338/04 State Vs. Rajesh Narang 3/8 of FIR, further investigation was marked to PW8 who prepared the site plan Ex PW 8/A. 9 He also deposed that at the time of the raid he had used the seal of SI Devraj Singh which he was having as he had handed over his own seal to some witness in another case.
10 He identified the accused and the case property through photographs Ex. PH1 (colly).
11 PW3 ASI Hari Om is another member of the raiding party. His testimony is in consonance with that of PW2. Howerver he deposed that at the time of raid accused was found packing sutli bombs in boxes in place of throw away bombs as deposed by PW2. 12 He also identified the accused and the case property through photographs. He also deposed about the arrest of the accused after registration of FIR through memo Ex. PW3/A & his personal search vide memo Ex. PW3/B. 13 PW4 Ct. Sanjeev Kumar is also member of raiding team and his deposition is in consonance with that of PW2. He also identified the accused and the case property through photographs. 14 PW5 Sh. A Dey is the Retd. Principal Scientific Officer & HOD, CFSL CBI who deposed that on 14.06.2005, he received 6 sealed parcels marked Q1-Q6 sealed with the seal of DS. Seals were intact. He examined the parcels and gave his report Ex. PW5/A. 15 PW6 SI Somveer is the MHCM PS Gandhi Nagar in the year 2004.
He proved the entry in Register no. 19 at Sl. no 1414 dtd. 26.09.2004as Ex. PW6/A by which the samples of the present case were sent to CFSL, Lodhi Raod, CGO Complex through Ct. Sunil vide RC no. 82/21 (Ex. PW6/C). He also proved the entry in Register no. 19 Ex. PW6/A at pt. X whereby the case propertyof the present case was deposited at M/s Durga Fireworks Godown, Palwal, Haryana vide FIR 338/04 State Vs. Rajesh Narang 4/8 RC no. 208/21 (Ex. PW6/B).
16 PW 7 HC Sunil Kumar is a formal witness who had deposited the samples of the present case with CFSL Lodhi Road on 14.06.2005 vide RC no. 82/21.
17 PW8 Inspector Ashok Kumar is the IO of the case. He was also a member of the raiding party. His deposition regarding the raid proceedings is in consonance with that of PW2. He proved the site plan prepared by him as Ex. PW8/A. He arrested and personally searched the accused vide memos Ex. PW3/B&C. He also identified the accused and the case property through photographs. STATEMENT OF ACCUSED 18 Statement of the accused u/s 313 Cr. PC was recorded on 20.08.2018 where in the entire incriminating evidence produced on record was put to him. He denied all the allegations and stated that he has been falsely implicated in this case. No recovery has been effected from him.
DEFENCE EVIDENCE OF ACCUSED 19 Accused did not examine any witness in his defence . 20 Final argument have been heard. Record carefully perused.
Judicial Resolutions 21 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the FIR 338/04 State Vs. Rajesh Narang 5/8 prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal. 22 Sec. 9B of the Explosives Act,1884 punishes the possesion, use, sale or transport of any explosives without license or in contravention of conditions of license granted.
23 In the present case, the entire case of the prosecution rests on the recovery of throw away bombs and sutli bombs, which have been opined to be " Manufactured Fire Works" as defined in the Explosives Act, 1884 as per the report of CFSL (Ex. PW5/A), from the possesion of the accused and also the identification of the recovered case property by the recovery witnesses before the court. 24 The prosecution has examined 4 recovery witnesses i.e. PW2, PW3, PW4 and PW8. No independent public person has been made a witness to the recovery despite their admitted presence at the spot. Even the neighbours have not been involved in the investigation. Moreover, no police official from the local P.S. i.e. PS Gandhi Nagar has been joined in the recovery proceedings, The reason for non- informing the local PS has remained unexplained. In these circumstances, before the testimonies of 4 police witness to the recovery can be relied upon for convicting the accused they need to be closely scrutinized.
25 A careful perusal of the testimonies of the police witnesses to recovery i.e. PW2, PW3, PW4 & Pw8 clearly shows that there are various contradictions in the testimonies of these witnesses. While PW2 deposed that at the time of raid accused was found packing throw away bombs in bags, as per PW3 he was found packing sutli bombs in boxes. As per these witnesses the recovered crackers/ fireworks were weighed using a weighing machine( Taraju). As per PW4 the said weighing machine was available in the godown whereas as per PW2 it was arranged by him from a junk dealer in Amar Colony, FIR 338/04 State Vs. Rajesh Narang 6/8 Lajpat Nagar. Even as per PW8 they were not carrying the weighing machine and PW2 had arranged the same from Amar Colony. Who went to Amar Colony to procure the weighing machine & how has remained unexplained. Even the junk dealer is not made a witness in the present case. There are also contradictions in the depositions of these witnesses qua the timings and vehicle by which they had reached the spot.
26 Moreover, no Departure Entry/ DD Entry has been placed on record to show the presence of these police witnesses in the area of P.S. Gandhi Nagar on the date of the raid & recovery. 27 All these contradictions in the testimonies of PW2, PW3, PW4 & PW8 as well as absence of Departure Entry when seen in the light of non- involvement of any public witness or the local police are sufficient to cloud the entire recovery proceedings with doubt. The benefit of this doubt has to be given to the accused.
28 It is also pertinent to note that the case property i.e. recovered throw away bombs and sutli bombs have never been produced before the court. Neither any witness from the magzine M/S Durga Fire Works has been examined to prove the factum of deposit of case property with them nor any document in this regard is proved on record. This in itself creates a doubt on the mere existence of the case property. 29 The prosecution has relied upon the photographs of the case property produced by the MHC(M) which are Ex. PH-1(Colly). These photographs show certain sealed kattas without any description of the case particulars. The seal is also not visible. Certain kattas can be seen in open condition without any seal. Some loose fire crackers can also be seen lying in open Taslas and Tokris. The condition of the case property as visible in the photographs is sufficient to create a doubt on its authenticity. The manipulation of the case property in these circumstances cannot be ruled out. This possibilty of FIR 338/04 State Vs. Rajesh Narang 7/8 manipulation of case property is fatal to the case of the prosecution.
30 In view of the above discussion and evidence on record I have no hesitation in holding that prosecution has miserably failed to prove the offences charged against the accused beyond any reasonable doubt. Accused is accordingly acquitted for the offence u/s 9 B of Explosives Act as charged against him giving him the benefit of doubt.
ANNOUNCED IN THE OPEN COURT ON 28.08.2018 (SHIVALI SHARMA) CMM (EAST)/KKD/ 28.08.2018 Certified that this judgement contains 8 pages and each page bears my signatures.
(SHIVALI SHARMA)
CMM (EAST)/KKD/ 28.08.2018
Digitally signed
by SHIVALI
SHARMA
Location: East
SHIVALI District
Karkardooma
SHARMA Courts Delhi
Date:
2018.08.28
15:15:37
+0530
FIR 338/04 State Vs. Rajesh Narang 8/8