Delhi District Court
Chamari vs . State 34 (1988) Dlt 124" In Which ... on 30 September, 2015
IN THE COURT OF SH. SONU AGNIHOTRI LD. CMM
DISTT. EAST, KKD COURTS DELHI
FIR No. 549/05
PS Pandav Nagar
JUDGMENT
UID No. 02402R0061152006 a. Sl. No. of the case : 162/08 b. Date of commission of offence : 27.10.2005 c. Name of the complainant : SI Vinay Yadav d. Name of the accused, his : Jai Prakash Jaiswal Parentage and address S/o Ram Dulare Jaiswal R/o 1360, Krishna Gali, Dariba Kalan, Delhi110 006.
e. Plea of accused : Pleaded not guilty FIR No. 549/05 PS Pandav Nagar Page 1/13 f. Offence complained of or proved: 9B of Explosives Act and Section 286 IPC g. Final order : Acquitted h. Date of Institution : 28.01.2006 i. Judgment reserved on : 17.08.2015 j. Judgment delivered on : 30.09.2015 Brief Facts
1. As per prosecution version, SI Vinay Yadav got lodged FIR U/sec 9 B of Explosives Act and U/sec 286/336 IPC by sending Tehrir in PS through Ct. Krishan Kumar.
2. It is stated that in the tehrir it was mentioned that SI Vinay Yadav was present in his office (Special Staff) and at about 02:00 PM, secret informer informed that one Jai Prakash who is having license of Fire Works and running his shop in name of J. P. Fire Works from Shop No. D31, Acharya Niketan, Mayur Vihar PhaseI, Delhi has stored fire works in an illegal manner in house located on first floor of the FIR No. 549/05 PS Pandav Nagar Page 2/13 abovementioned shop and if raided, illegal fire works can be seized. It was stated that the information was shared by SI Vinay Yadav with Inspector Special Staff who further discussed the matter with his senior officials and directed SI Vinay Yadav to raid the premises. It was stated that information was recorded by SI Vinay Yadav vide DD No. 8 and he prepared a raiding party consisting of HC K. P. Tyagi, Ct. Krishan, Ct. Subhash and Ct. Yashvir. It was stated that SI Vinay Yadav disclosed the facts of secret information to fourfive passersby and asked them to join raiding party but everyone left stating his genuine reasons and without disclosing their names and addresses. It was stated that without wasting further time, SI Vinay Yadav alongwith raiding party reached at Shop No. D31, Acharya Niketan, Mayur Vihar PhaseI, Delhi at about 03:15 PM. It was stated that owner of the shop Mr. Jai Prakash Jaiswal met at the said shop to whom SI Vinay Yadav gave his introduction and showed his identity card. It was stated that SI Vinay Yadav told Jai Prakash that he has stored illegal explosives /fire works in house above the shop. It was FIR No. 549/05 PS Pandav Nagar Page 3/13 stated that Jai Prakash showed his license number DE981E issued by Explosives Department, Government of India and stated that he did not have any illegal storage. It was stated that SI Vinay Yadav got opened door of first floor of house No. 31, Acharya Niketan from Jai Prakash and found that in the room on first floor, explosives in large quantity were kept. It was stated that SI Vinay Yadav with the help of accompanying staff kept small explosives /fire works in bag and remaining large explosives /fire works were assigned serial number 1 to 180 and weighed the same on which the weight was found to be 1600 kg which was apart from 1100 kg of licensed stock kept in shop No. 31. It was stated that there was no safety device or fire extinguisher on the first floor and Jai Prakash did not have any license for the same. It was stated that from storage on the first floor, there was danger of life and property in the adjoining residential area. It was stated that all the explosives were kept in the same room and the room was locked and seal bearing initials of "VY" was impinged on the lock of the room and explosives were taken into possession FIR No. 549/05 PS Pandav Nagar Page 4/13 vide separate memo. It was stated that tehrir was sent in the PS through Ct. Krishan.
3. It is stated that investigation after registration of FIR was assigned to HC Amar Chand who inspected spot at instance of SI Vinay Yadav and prepared site plan. It is stated that IO during investigation recorded statements of witnesses, arrested accused and personally searched him. It is stated that IO released accused on police bail. It is stated that keys of the godown/room and seizure memo was deposited in malkhana of PS Pandav Nagar. It is stated that case property was released on superdari as per order of Ld. MM.
4. After completion of investigation, chargesheet was filed before court on 28.01.2006.
5. After appearance of accused before court, provisions of section 207 Cr. PC were complied with. Prima facie case having been made out, charge u/s 9B of Explosives Act and Under Section 286 IPC was framed against accused on 01.02.2007 to which accused pleaded not guilty and claimed trial.
FIR No. 549/05 PS Pandav Nagar Page 5/13 Prosecution examined following witnesses in order to prove its case against accused: PW 1 SI Vinay Yadav PW 2 ASI Chander Prakash PW 3 HC Amar Chand PE was closed vide order of court dated 09.12.2013. S/A u/s 313 Cr. PC was recorded on 11.02.2014 in which all incriminating material appearing in evidence against accused were put to accused to which accused stated that he was a stockist of explosives at relevant time having license for the same. He stated that on 27.10.2005, one Tata 407 bearing No. DL1LD7150 was standing on the road before premises as mentioned in the question which had explosives which were to be delivered to his concern Jay Pee Fire Works (only about 100/150 kgs) and rest of explosives in the abovementioned Tata 407 were to be delivered to Shri Balaji Fire Works, Shital Prasad Sanjay Kumar, Shri Hanuman Fire Works and Jain Trading Corporation. He stated that on 27.10.2005, police officials from Special Staff came to his aforementioned premises and asked FIR No. 549/05 PS Pandav Nagar Page 6/13 for some bribe after seeing abovementioned Tata 407 standing in front of abovementioned premises which he declined. He stated that on this, those officials forcefully got unloaded explosives in the aforementioned Tata 407 in first floor of abovementioned premises and made this false case against him. He stated that present false case was lodged against him on his refusal to give bribe to officials of Special Staff.
Accused examined Mr. Subhash Chand Kataria in DE as DW 1. DE was closed on submissions of defence counsel vide order dated 04.07.2015.
I have heard final arguments addressed by respective counsels and perused the record including judgments filed on behalf of accused. Decision and Brief reasons for the same Before giving my findings with respect to present case, I will discuss evidence led by prosecution and defence.
PW1 SI Vinay Yadav is police official who exhibited rukka vide Ex. PW1/A and seizure memo of case property vide Ex. PW1/B. He correctly identified accused before court.
FIR No. 549/05 PS Pandav Nagar Page 7/13
PW2 ASI Chander Prakash is Duty Officer who exhibited carbon copy of FIR vide Ex. PW2/A. PW3 HC Amar Chand is IO who exhibited site plan vide Ex. PW3/A, arrest and personal search memo of accused vide Ex. PW3/B and Ex. PW3/C respectively. DD No. 12 dated 27.10.2005, Special Staff, East District was exhibited in cross examination of PW3 vide Ex. PW3/D. He correctly identified accused before court.
DW1 Subhash Chand Kataria exhibited original bills vide Ex. DW1/1 to Ex. DW1/5. He deposed that on 27.10.2005, he sent fire works to five dealers which he came to know that police seized the same at Jay Pee Fire Works, Mayur Vihar, Delhi.
After considering respective arguments and evidence led by prosecution, I am of the opinion that prosecution has not been able to prove guilt of accused beyond reasonable doubt. The reasons as to why I have arrived at such a conclusion are as follows:
Rule 10 of Explosives Rules, 1983 provides that weight of explosives when referred to in these rules shall not include the weight of the FIR No. 549/05 PS Pandav Nagar Page 8/13 packaging box in which the explosives are packed.
Proviso to Rule 10 of Explosives Rules, 1983 provides that provided that in case of Explosives of the 6th (Ammunition) Class or 7th (Fire Works) Class, the weight shall be deemed to be the weight of the completed article inclusive of the case or contrivance in which explosive is contained.
Perusal of Rule 10 of Explosives Rules as mentioned above clearly shows that weight of packing box in which explosives are packed shall not be included in weight of explosives.
Case property was not produced before court even once. Photographs of case property was marked before court vide Mark X1 to Mark X4. Perusal of Mark X1 to Mark X4 shows that number of boxes have been shown in the same which prima facie shows that fire works if any seized at the spot were packed in packing boxes and as per Rule 10 as referred to above, weight of the packing boxes was not to be included while weighing explosives.
PW1/SI Vinay Yadav has not deposed that he firstly culled FIR No. 549/05 PS Pandav Nagar Page 9/13 out explosives out of the boxes and then weighed them meaning thereby that weight of explosives mentioned to be 1600 kg as put forth by prosecution is not correct. Further PW1 in his deposition in his examination in chief has deposed that the crackers were weighed and the same were about 1600 kg over to the license limit. He further deposed that the license was only upto 1100 kg. Perusal of Ex. PW1/A shows that in it, it has been mentioned that in shop No. 31, 1100 kg explosives /fire works were kept and explosives /fire works to the tune of 1600 kg found on the first floor were besides licensed stock of 1100 kg. PW1 has neither stated in Ex. PW1/A nor in his deposition before court that he weighed explosives /fire works lying in shop No. D31. How come, he formed an opinion that explosives /fire works kept in shop No. D31 weighed 1100 kg when no proceedings of weight of the same appears to have been done by PW1.
Weight of explosives /fire works as allegedly recovered from room in first floor of shop No. D31 as discussed earlier cannot be taken to be correct and in absence of weight of explosives /fire works lying in shop at ground floor, it cannot be said that weight of explosives/fire works lying FIR No. 549/05 PS Pandav Nagar Page 10/13 in the complete premises were beyond 1100 kg. No photographs of shop at D31, Ground Floor have been filed by IO for proper assistance/guess in this regard.
Further, though case property i.e explosives and fire works were released on superdari in present case but complete case property has not been produced before court. As per Ex. PW1/A, the room in which case property was kept was locked and as per body of charge sheet, keys of the godown /room and seizure memo was deposited with MHC (M) PS Pandav Nagar. No lock and key has been produced in evidence of any of the PWs examined by state, which means that part case property has not been produced before court which fact in itself reduces trustworthiness of prosecution version.
Further, the alleged articles seized at the spot were explosives /fire works within meaning of definition of Explosive as laid down in Explosives Act, 1884 has not been proved on record by state. Neither PW1 nor IO seems to have sent sample of allegedly recovered articles to Chief Controller appointed under Explosives Act. This fact alone FIR No. 549/05 PS Pandav Nagar Page 11/13 takes case away from prosecution.
Further, there are many missing links in story of prosecution. Endorsement on rukka has not been proved on record by state though DO/PW2 was examined by state. State has also not proved copy of DD No. 8 dated 27.10.2005 PS Special Staff East on record vide which information as received by PW1 /SI Vinay Yadav with regard to illegal storage of crackers /fire works was reduced into writing. Perusal of arrest memo of accused Ex. PW3/B shows that time of arrest has not been mentioned into the same which fact reduces trustworthiness of prosecution version.
Accused has filed judgment in case titled as "Sunari Alias Chamari Vs. State 34 (1988) DLT 124" in which provisions of Section 100 Cr. P. C. have been discussed. It has been laid down in this case that calling of independent witnesses from public for witnessing the search is not an idle formality. Defence counsel relying upon this judgment argued that PW1 in a casual manner has deposed that some public persons were asked to join the investigation but none agreed. He argued that there is no mention by SI Vinay Yadav that public persons were apprised of provisions of FIR No. 549/05 PS Pandav Nagar Page 12/13 Section 187 IPC. He argued that non joining of public witnesses at the time of search of premises in question makes recovery doubtful. I find force in submissions of defence counsel. From deposition of PW1 and Ex. PW1/A, it does not appear that sincere efforts were made by PW1 to join public witnesses for search of premises in question. Non joining of public witnesses also makes recovery in the present case doubtful.
There is no requirement of discussing defence evidence as prosecution in present case has not been able to stand on its own legs. In view of my discussion in various preceding paras, I am of the view that state has failed to prove its case against accused beyond reasonable doubt and recovery as well as quantity of alleged recovery in present case is doubtful. In these circumstances, accused cannot be convicted for offences U/sec 9B of Explosive Act and Section 286 IPC. Accused is therefore acquitted for offences U/sec 9 B of Explosive Act and Section 286 IPC.
File be consigned to Record Room.
Announced in the open court (SONU AGNIHOTRI)
Dt. 30.09.2015 CMM, District East
Karkardooma Courts, Delhi.
FIR No. 549/05 PS Pandav Nagar Page 13/13