Delhi District Court
State vs . Bhiso Paswan on 2 March, 2022
IN THE COURT OF MS. CHHAVI KAPOOR
CHIEF METROPOLITAN MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
State Vs. Bhiso Paswan
FIR No. 266/12
P.S. Crime Branch
1. ID No. of case 65097/2016
2. Date of institution 07.08.2013
3. Name of the complainant SI Praveen
4. Date of commission of offence 10.11.2012
5. Name of accused Bisho Paswan, S/o Chote Lal
Paswan, R/o A2A/277, Second
Floor, Janak Puri, New Delhi.
6. Offence complained of 9 of the Explosives Act, 1884.
7 Plea of accused Pleaded not gulity
8 Final order Acquitted.
9 Date of such judgment 02.03.2022
FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 1 of 14
JUDGMENT
1. Prosecution has filed a chargesheet against the accused Bhiso Paswan on the allegations that on 10.11.2012 at about 11.30PM at Shop No A2/18 DDA Market ,Janak puri , Delhi. he was found in possession of explosives; fire crackers weighing around 994 Kgs, without any license and in contravention of the rules u/s 5 of the Explosives Act , 1884 and rule 113 of the The Explosives Rules, 1983 and thus, he committed offences u/s 9 B of the Explosives Act, 1884.
2. In support of its case, prosecution examined the following 5 witnesses.
3. PW1 is Ct Ravinder Malik .This police official was a member of the raiding team, which apprehended the accused while he was found in possession of the Explosives in contravention of the provisions of the Explosives Act .This witness had deposed that a secret information was received in crime branch that a person was selling huge quantity of firecrackers without possessing any valid license .He had FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 2 of 14 deposed that upon receipt of this information from a secret informer , it was shared with SI Praveen Kumar , who shared the same with SI Pawan .It was deposed that SI Pawan discussed the matter with senior officials and thereafter ,it was decided that a raiding team would be constitutued to take quick action against the accused .Witness deposed that apart from him, SI Praveen Kumar, HC Hanuman , Ct Ravinder Khokhar and Ct Billu were made a member of the raiding team and at about 11.15 PM, they reached at DDA Market, Janak Puri for catching the accused. Witness deposed that SI Praveen requested some public persons to become a witness to the investigation but none agreed and left the spot citing their personal reasons. Witness deposed that SI Praveen Kumar checked the other shops in the market and found out that a person in the shop No A2/18 DDA Market was engaged in selling huge quantity of fire crackers without license . Witness deposed that thereafter, the firecrackers were counted and it was found out that there were 54 Card Board boxes containing different fire crackers such as "phool jhari, rockets, pathakas"etc. Witness deposed that from each card board box , FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 3 of 14 one item was taken out as sample and was marked as S1 (and so on and so forth) and the remaining articles were marked at A1(and so on and so forth). It was deposed that the sample boxes and the remaining boxes were seized with the seal of PK and it was found out that card board boxes were weighing 953 Kgs whereas the sample boxes were weighing 41 kgs .Witness deposed that thereafter, SI Praveen handed over the seal to him and prepared a rukka and handed over the same to Ct Ravinder Khokhar for getting an FIR registered. It was deposed that further investigation was carried out by SI Praveen on registration of the FIR wherein he arrested the accused and later on released him on police bail , got the case property deposited in the Malkhana and recorded the statement of witnesses .
4. PW2 is H Ct. Prithvi Singh. This witness deposed that he had collected the case property, i.e 54 Cartons from MHC(M)Jag Narain vide RC No .630/21 in a tempo and taken it to M/s Ram Lal Chander Bhan Magazine Village ,Dhoda , District Gurgaon and handed it over to Supervisor Surender Singh .
5. PW3 is H Ct. Ravinder Khokhar .This witness was a FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 4 of 14 member of the raiding party that was formed at the behest of the IO SI Praveen to nab the accused. He has deposed that apart from him and SI Praveen , H Ct. Hanuman, Ct. Ravinder Malik, Ct. Billu and a secret informer were part of the raiding team and at about 11.15 PM ,they reached at the DDA Market ,Janakpuri to conduct a raid for apprehending the accused .It was deposed that the IO conducted searches at different shops and checked if they were selling fire crackers with proper license or not .It was deposed that the shop No A2/18 DDA Market was checked and it was found out that a person namely Bhiso Paswan (i.e the accused ) was selling firecrackers without proper license .The witness deposed that on search , 54 card board boxes were found inside the shop having huge quantity of fire crackers .It was deposed that samples were taken out of each card board box and given a separate marking and both sample and articles were separately sealed with the seal of PK and seal after use was handed over to Ct Ravinder Malik .It was deposed that a rukka was prepared by SI Praveen and handed over to this witness for getting an FIR registered against the accused .
FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 5 of 14
6. PW4 is Dr Sanjay Kumar , Controller of Explosives, North Circle , Faridabad , Haryana .This witness had deposed that on 04.6 .2013 , he was working as the Deputy Controller of Explosives at the above stated address under One Sh. Rakesh Bajaj and thus , he could identify the signatures and handwriting of the said person .In his testimony , this witness proved the original report/ opinion dated 04.6.13 given by Dr .Rakesh Bajaj as document ExPW4/A.
7. PW5 is Inspector Praveen Kumar. He is the investigating officer of this case. He had deposed that on 10.11.2012 , he received an information from Ct. Ravinder Khokhar regarding illegal sale of fire crackers at Janakpuri Market. He deposed that on confirmation of the information by secret informer , he constituted a raiding party consisting of HC Hanuman , Ct Ravinder Malik , Ct Ravinder Khokar and Ct Billu. He deposed that on reaching the spot , he made enquiries from the shop of the accused and found out that the accused was selling fire crackers without a license .The IO further deposed that he had carried out inquiry from other shop owners as well but it was only the shop of the accused that did not FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 6 of 14 possess a valid license for selling fire crackers .The witness deposed that thereafter, he counted the number of boxes kept in the shop of the accused and found them to be 54 boxes having fire crackers of different make. He deposed that he took out samples from each box and seized the samples and the separate boxes with seal of PK. He deposed that he also prepared a rukka and got an FIR registered by sending the same through Ct Ravinder Khokhar. He deposed that after registration of the FIR, he arrested the accused, deposited the case property in Malkhana and recorded the statement of the witnesses during investigation. Witness deposed that during investigation , he also collected the opinion of the Explosives department ,Faridabad to ascertain if the seized articles were falling withing the definition of Fire cracker or not .
8. During the course of prosecution evidence , statement of SI Rakesh Ahluwalia was recorded on 03.2.2017. He was the second IO of the case. He deposed that the case property of this FIR had been destroyed and hence, could not be produced before the court during trial.
9. In his statement u/s 313 r/w Sec 281 Cr.P.C., the FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 7 of 14 accused claimed that he had been falsely implicated in this case. He stated that the case of the prosecution was false and all the police witnesses had deposed falsely. The accused did not lead any evidence in his defence.
10. After conclusion of evidence, final arguments were advanced before this Court.
11. Testimonies of all the police / prosecution witnesses makes it clear that no Individual/ public person was joined in the investigation or in the search and seizure proceedings by the IO .
In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), Hon'ble High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 8 of 14 when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Hon'ble Punjab & Haryana High Court held as under:
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 9 of 14 the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 10 of 14 for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
12. It is the admitted case of the prosecution that the spot from where the accused was apprehended was a busy market .It was further admitted that the time period when the accused was apprehended was near Diwali/Dhanteras and there were a lot of shops selling crackers in the area .Despite availability , the police did not care to join independent public witnesses to the investigation .The IO further did not care to issue notices to the public persons who refused to join the investigation or take action against them on their refusal. This laxity of the police has undoubtedly cost the case of the prosecution .
13. It was the case of the accused that false recoveries were shown from him. He had argued that the fire crackers were being sold by the squatters and he was not involved in illegal sale of fire crackers. The police witnesses had admitted that at the time of the alleged search and seizure, a lot of fire crackers and similar material was found outside the shop of the accused, FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 11 of 14 however, the same appears to have not been seized by the IO. It was argued by the accused that the shop where the raid was conducted was in DDA Market and thus, the police should have served notice upon the owner of the shop to ascertain the activities going on in the shop. The accused claimed that his shop owner had a proper license to sell fire crackers, however he denied that he was engaged in illegal sale of fire crackers and claimed that it was the squatters outside this shop that were illegally selling the fire crackers. PW1 had admitted that there was no identification mark or name of the shop owner on the cartons (case property) containing the fire crackers that could link the accused with possession of the fire crackers .The police seems to have not served a notice upon the owner of this shop where the raid was conducted. Further, there is no report in the chargesheet that the accused was the owner of this shop . In the cross examination of PW3 ,it was suggested to the witness that the accused was an employee of one Subhash Chand Kataria , who was the owner of the shop .The witness did not deny this suggestion and instead replied that he did not know about this claim. Thus, even if the fire crackers were FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 12 of 14 found in possession of the accused in this shop , the owner of the shop would have been equally liable for the contravention of the Explosives Act. However, the police seems to have conveniently forgotten this aspect and not ascertained as to who was the owner of this shop and fasten liability on him. The most important fact , which goes on to support the accused is that the prosecution failed to produce the case property in the court .No photographs of the recovered case property were exhibited on record. Recovery proceedings were not videographed as well. The seal which was apparently used to seal the sample and the remaining articles were not produced in evidence. There is no seal handing over memo prepared at the behest of the first IO and exhibited on record in prosecution evidence .It was claimed by the police witnesses that a weighing scale was used to weigh the recovered case property but the circumstances in which the weighing scale was procured by the IO are also circumspect. Further, the prosecution witnesses have given contradictory testimony regarding the mode of transport by which the case property was shifted from the spot to the Malkhana .The recoveries have not been witnessed by any public persons.
FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 13 of 14 Above all, case property is not exhibited in prosecution evidence as it was not produced before the Court at even one point of time.The abovesaid circumstances suggest that the case of the prosecution is not free from reasonable doubt. It can be safely deduced that the prosecution has failed to prove its case beyond reasonable doubt. Hence, in such circumstances, accused is granted the benefit of doubt and acquitted in this case .
Announced in the open court (CHHAVI KAPOOR)
on 02nd March, 2022 Chief Metropolitan Magistrate,
West District, Tis Hazari Courts, Delhi.
Certified that this Judgment contains Fourteen (14) pages and each page is signed by me.
(CHHAVI KAPOOR) Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi.
FIR No. 266/12 PS Kirti Nagar State Vs. Bhiso Paswan Page- 14 of 14