Delhi District Court
State vs . Kanwarjeet Singh on 10 April, 2012
IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Kanwarjeet Singh
DD No. 57B/05
PS: Keshav Puram
U/s 28/112 D.P.Act
ID No. 02401R0487082005
JUDGEMENT
A) Sl. No. of the case : 299/3
B) The date of commission : 20.05.2005
of offence
C) The name of the complainant :
HC Bhagat Singh
PS Keshav Puram, Delhi.
D) The name & address of accused : Sh. Kanwarjeet Singh
S/o Sh. J.S.Hanspal
R/o H.No. 14/53B West Punjabi Bagh
Delhi
E) Offences complained of : U/s 28/112 D.P. Act
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 10.04.2012
Date of Institution: 03.06.2005
Judgment reserved on: 02.04.2012
Judgment announced on: 10.04.2012
THE BRIEF REASONS FOR THE JUDGEMENT:
1. The accused herein namely Kanwarjeet Singh has been challaned in respect of offence u/s 28/112 DP Act on 20.05.05 on the ground that he was running banquet hall and eating house in the name and style of "STRIPLEX" at premises DD No. 57B/05 Page No. 1/11 No. 9B, Lawrence Road, Industrial Area, Delhi. It is mentioned in the kalandra u/s 28/112 DP Act filed before the Court that on 20.05.05, HC Bhagat Singh and Ct. Ram Gopal were on checking duty of eating houses and banquet halls. At about 6.15 pm when they reached at premises no. 9B, Lawrence Road, Industrial Area, Delhi, the present accused was allegedly running the aforesaid banquet hall and eating house. However, he could not produce any license for running the same. Accordingly, he was challaned in respect of said offence. HC Bhagat Singh took photographs from one camera.
It is relevant to mention here that vide order dt. 24.01.09, Ld. predecessor of this Court issued direction u/s 173(8) Cr.P.C for further investigating the matter and to file the report before the Court. Accordingly, supplementary kalandra u/s 173(8) was filed before Ld. Predecessor on 28.08.09.
2. After complying with the provision contained in Section 207 Cr.P.C, notice in respect of offence u/s 28/112 DP Act was served upon the accused on 02.12.09 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined four witnesses namely PW1 HC Ram Gopal (the then Ct.), PW2 ASI Bhagat Singh (the then HC), PW3 Ms. Saroj Chhada, Suptt. Central Excise and PW4 Ms. Manisha Wadhwa, Asstt. Manager, NDPL towards PE which was closed on 02.12.11.
4. Thereafter, statement u/s 281 Cr.P.C of accused was recorded on 12.03.12 in which all the incriminating evidence was put to the accused and his defence was of general denial. He claimed that he has been falsely implicated in the present case. DD No. 57B/05 Page No. 2/11 However, he opted not to lead evidence in his defence.
5.. I have already heard Ld. APP for the State and Ld. counsel Sh. R.S.Juneja adv for the accused. I have also perused the material available on record.
PW1 and PW2 entered into witness box and deposed on the lines of prosecution story as mentioned in the kalandra and discussed herein above. During chief examination of PW1, two photographs of the banquet hall have been marked as A & B respectively. PW1 deposed during his cross examination that the said two photographs were taken by IO (PW2) with his own camera. He admitted that the said photographs do not reflect that any function was going on in the said banquet hall. He further deposed that IO did not seize any document in the banquet hall in his presence. No independent public person was present in the said banquet hall at that time. He claimed that employees were present there but they were also not examined by IO. He denied the suggestion given by accused that he alongwith IO did not visit the said premises or that accused was found present there or that the banquet hall was not functioning at the given address at that time.
PW2 has put exhibit marks on both the said photographs as Ex.PW2/A and Ex.PW2/B during his chief examination. He also proved the present kalandra as Ex.PW2/C and the copy of arrival entry dt. 20.05.05 as Ex.PW2/D. During his cross examination on behalf of accused, he could not tell as to whether he had made any departure entry while leaving PS for patrolling duty at 4.30 pm on 20.05.05. He deposed that no other restaurant or eating house was checked by him on that day. He claimed that he had requested several public persons to join the investigation but none DD No. 57B/05 Page No. 3/11 joined. He admitted that he did not take photographs of the public persons who were sitting/taking their snacks/food inside the banquet hall at that time. He did not record the statement of any of those public persons and also did not examine any employee present in the said banquet hall. He also admitted that he did not seize any cash memo/bill issued by said banquet hall on that day to any of its customers. He also admitted that photographs Ex.PW2/A and Ex.PW2/B reflect the banquet hall merely from outside. He claimed that he had borrowed the camera from some other person whose name he did not remember. He did not record statement of the person from whom the said camera was borrowed by him. He also did not record the statement of any employee from MCD/electricity department/DDA. He also did not prepare the site plan. He expressed his ignorance about the fact that license had been issued by DDA in the name of M/s Striplex Industries at the given address. Of course, he denied the suggestion given to him by the accused that no banquet hall was being run on that day or that accused has been falsely implicated in this case.
PW3 has proved the photocopy of form ST2 Annexure dt. 05.02.08 in respect of M/s Striplex Industries Pvt. Ltd. at the address of B9, Lawrence Road, Industrial Area, Delhi as ExPW3/A. She has not been cross examined by the accused despite grant of opportunity.
PW4 has proved the copy of electricity bill against connection no. 3210070904788 for the month of July 2009 in the name of M/s Striplex Industries Pvt. Ltd. at B9, Lawrence Road, Industrial Area, Delhi as Ex.PW4/A. During her cross examination, she admitted that electricity connection stands in the name of M/s DD No. 57B/05 Page No. 4/11 Striplex Industries Ltd. and not in the name of any banquet hall or restaurant. She further admitted that she never personally visited at the said address of M/s Striplex Industries Ltd. in order to see as to whether it was an industry or a restaurant or a banquet hall.
6. Ld. APP for the State has argued that testimonies of PW1 and PW2 clearly prove the charge against the accused that he was running banquet hall/eating house without any license and therefore, the accused should be convicted accordingly. Ld. APP for the State has argued that accused has not been able to produce any valid license for running the said eating house/banquet hall at the given address and therefore, the said eating house/banquet hall is liable to be closed in terms of provision contained in Section 112 of DP Act as it is mandatory for any person to obtain said license for running eating house within the territory of Delhi.
7. On the other hand, Ld. counsel for the accused has argued that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. Ld. counsel argued that there is no evidence proved on record which may show that accused herein was running any eating house at the given address or that he was present at the said premises on 20.05.05. While referring to the testimonies of PW3 and PW4, it has been argued that relevant record produced by said two witnesses does not pertain to the relevant period and therefore, the testimonies of both the said witnesses as well as the record produced by them are inconsequential.
8. It is cardinal principle of criminal jurisprudence that the prosecution has to stand on its own legs and is required to prove its case against the accused beyond DD No. 57B/05 Page No. 5/11 reasonable doubt. The accused is presumed to be innocent till he is proved guilty.
9. Section 28 of Delhi Police Act confers power upon the Commissioner of Police to make regulations by way of notification in official gazette in respect of certain matters. Section 28(1)(za) of the said Act deals with the registration of eating house and provides that written permission/license is mandatory for the purpose of running an eating house within the meaning of the said Act. Section 112 of the Act provides the punishment/penalty in case of violation of the provision contained in Section 28 of the said Act.
10. The expression "Eating House" has been defined by Section 2(h) of the said Act. It provides that eating house means any place to which public are admitted and where any kind of food or drink is supplied for consumption on the premises by any person owning or having any interest in, or managing such place and includes a refreshment room, boarding house or coffee house, or a shop where any kind of food or drink is supplied to the public for consumption in or near such shop.
The careful perusal of the definition of phrase "Eating House" makes it abundantly clear that serving of any kind of food or drink for consumption by the public at large is sinequanon for the application of the provision contained in Section 28 of Delhi Police Act.
11. In the case in hand, the prosecution has alleged that accused herein was running a banquet hall and eating house under the name and style of " STRIPLEX" at premises no. 9B, Lawrence Road Industrial Area, Delhi on 20.5.05. Thus, it was incumbent upon the prosecution to prove during trial that eating house within the DD No. 57B/05 Page No. 6/11 meaning of Section 2(h) of D.P Act was actually being run at the given address on 20.5.05 without any valid license. For the said purpose, the prosecution was required to prove on record that accused was owner or was having any interest or manager of the said premises. However, there is no evidence available on record which may prove that the accused herein had any concern whatsoever with the said premises as on the date of commission of alleged offence. Although, Ld APP for the State has referred to the document Ex PW3/A which is ST2 Annexure dt. 05.2.08 issued by the office of Central Excise, in support of her contention that the said premises belongs to the accused herein. However, the said contention is found to be without any substance. The document Ex PW3/A has been addressed to M/s. Striplex Pvt. Ltd at the given address but the name of present accused is nowhere mentioned in the said document. Likewise, the electricity bill Ex PW4/A also stands in the name of M/s. Striplex Pvt. Ltd issued at the given address. No document whatsoever has been collected by investigating agency in order to show as to how the present accused is connected with M/s. Striplex Industries Pvt Ltd or that he is either owner or is having any interest or he is the manager of the premises at the given address.
12. Be that as it may, the prosecution has not been able to prove on record that any eating house was actually being run at the given address as on the date of commission of alleged offence. The reliance placed by Ld APP for the State on the testimonies of PW1 and PW2 in this regard, is immaterial. There are material contradictions appearing in the testimonies of said two prosecution witnesses. PW1 testified during his cross examination that the photographs Ex PW2/A and PW2/B DD No. 57B/05 Page No. 7/11 were taken by IO(PW2) from his own camera but said portion of his testimony has been totally contradicted by PW2 who claimed that the said camera was borrowed by him from some other person whose name he could not disclose during cross examination. Not only this, PW1 deposed during his cross examination that no public person was found present in the banquet hall at the time of their visit to the said place but PW2 again deposed contrary by stating that there were public persons found sitting inside the banquet hall at that time.
13. Moreover, it has been admitted by PW2 during his cross examination that he did not take photographs of the public persons who were sitting/taking their snacks/food inside the premises at that time and he also did not record the statement of any such public persons. He also admitted that he did not examine any employee present in the said premises. He also did not seize any cash memo/bill issued on that day to any of the customers. The Court finds considerable force in the submission made on behalf of accused that it was the duty of IO to seize the relevant cash book/bill book regarding the cash memo/bill issued to the customers on that day in order to prove on record that any eating house was actually being run from the said premises. The said document was the most material piece of evidence which could have established the guilt of accused during trial. However, the same has not been done by the investigating agency for the reasons best known to them.
14. Ld APP for the State argued that the photographs Ex PW2/A and PW2/B clearly reflect the board of "STRIPLEX PARTY HALL" affixed outside the given premises and therefore, it has been clearly established that the accused was running an eating DD No. 57B/05 Page No. 8/11 house at the given time, date and place. However, the Court is unable to accept the said argument for the simple reason that mere putting of an hoarding/board outside the premises, would not be sufficient to hold the accused guilty in respect of the offence U/s 28/112 of DP Act. Merely because some hoarding/board reflecting the name of any banquet hall has been affixed outside any premises, would not give rise to an inference that eating house is being run inside the said premises in the absence of any independent and cogent evidence being proved on record. Moreover, both the said photographs have not been proved by prosecution witnesses in accordance with law of evidence. The reason being that neither negatives nor CD in respect of said photographs have been filed on record alongwith the kalandara what to say of same being proved during trial. In the absence of relevant negatives/CD of those photographs, same cannot be said to have been proved in accordance with the law of evidence. It is well settled law that mere putting of an exhibit mark on a document, does not dispense with its proof and such document is still required to be proved in accordance with law of evidence. Still if any authority is required than reference with advantage can be made to the judgments reported at AIR 1971 SC 1865 and 1995 RLR 286.
15. In view of the reasons mentioned herein above, both the photographs Ex PW2/A and PW2/B are liable to be brushed aside and cannot considered as piece of evidence. After discarding the said two photographs, the only evidence available before the Court is the oral testimonies of PW1 and PW2 which, too, do not inspire confidence in view of material contradictions appearing therein and already discussed DD No. 57B/05 Page No. 9/11 herein above. The said prosecution witnesses have failed to explain as to why none of the public persons was examined by IO in case he /she was present inside the said premises at that time. It has also not been explained as to why IO did not care to seize the cash memo/bill in respect of food/snacks/drinks being served to the customers inside the said premises. It is also not understandable as to why the photographs from inside the said premises were not taken by IO at that time. It is the admitted case of prosecution that IO was already having digital camera in his possession. Infact, he had clicked two photographs from outside the said premises. Thus, it was not difficult for the IO to take photographs from inside the said premises. Had it been so done, those photographs would have clearly showed the public persons enjoing their food/snacks/drinks inside the said premises and would have helped the prosecution to prove its case The other two prosecution witnesses namely PW 3 Ms. Saroj Chadha and PW4 Ms. Manisha Wadhwa, have nowhere deposed against the accused at all. They are witnesses to certain record and have proved the copy of ST2 Annexure dt. 05.2.08 as well as the photocopy of electricity bill for the month of July 2009. Even the record proved by said two witnesses is totally immaterial for the purpose of decision of present case as the said record does not pertain to the relevant period in respect of which challan has been issued against the accused. As already mentioned above, the Court had directed the investigating agency to further investigate the matter on several points but still the investigating agency failed to investigate the matter properly and in fair manner with the result that the charge levelled against the accused could not be established during trial. DD No. 57B/05 Page No. 10/11
16. In view of the aforesaid discussion, Court is of the considered view that the prosecution has failed to bring home the guilt of accused beyond reasonable doubt. Consequently, accused namely Kanwarjeet Singh is acquitted in respect of offence alleged against him. His personal bond stands cancelled. Original documents if any be returned to the rightful owner after cancellation of endorsement if any. File be consigned to record room.
Announced in the open court (VIDYA PRAKASH)
today on 10.04.2012 (ACMM1/NW/RC/DELHI)
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