Delhi District Court
State vs Pradeep Gupta on 26 March, 2024
IN THE COURT OF VASUNDHRA CHHAUNKAR,
ACMM (NORTH-WEST) ROHINI COURTS, DELHI
FIR No.676/2006
PS: JAHANGIR PURI
U/s. 409/411 IPC & Section 4 of Prevention of Damage to
Public Property Act.
State Vs. Pradeep Gupta Etc.
Unique ID no. of the case : 536301/2016
Date of commission of offence: 28.09.2006
Name of complainant : Inspector Rajbir Sharma
Name and address of accused : 1. Pradeep Gupta
S/o late Shri Mahavir
Parshad Gupta
R/o- C-1089, LIG Flats
East of Loni Road, Delhi
2. Bharat Bhushan
Mittal
S/o late Shri Nathu Ram
R/o G-4/117-118, IInd
Floor, Sector-11, Rohini
Delhi.
(The accused Bharat Bhushan Mittal was discharged vide
order dated 04.08.2012 by the orders of Ld. ASJ-03, North-
West, Rohini Courts, Delhi)
Offences complained of : U/S 409/411 IPC & Section 4
of Prevention of Damage to
Public Property Act.
Offence charged against : U/s 411 IPC
accused Pradeep Gupta
Date of Institution of case : 27.11.2006
Date on which Judgment pronounced: 26.03.2024
Digitally signed
by
VASUNDHARA VASUNDHARA
CHHAUNKAR CHHAUNKAR
Date: 2024.03.26
16:21:04 +0530
FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.1 of 20
JUDGMWNT
BRIEF FACTS OF THE CASE:
1. The accused persons have been sent to face trial under Section 409/411 IPC and Section 4 of Prevention of Damage to Public Property Act (hereinafter called as IPC and PDPP), on the allegations that on 28.09.2006, accused Bharat Bhushan Mittal who was working as pharmacist in BJRM Hospital was entrusted with medicines or having dominion over the same and committed criminal breach of trust in respect of the medicines by delivering medicines to accused Pardeep Gupta for sale/disposal in the open market committed an offence punishable U/s 409 IPC. On the aforesaid date at about 2.30 p.m. near Emergency Gate of BJRM Hospital accused Pardeep Gupta was apprehended with some cartons of medicines and he was found in possession of the same and committed an offence punishable U/s 411 IPC. It is further alleged in the chargesheet on 30.09.2006 accused Bharat Bhushan Mittal committed an offence of mischief by giving direction to Harish Kumar and Manohar Singh for throwing and ablazing three polythene bags containing medicines which was public property committed an offence punishable U/s 4 of PDPP Act.
2. Charge-sheet was filed against both the accused persons for the above offences. After summoning of the accused persons and supply of chargesheet, the matter was posted for arguments on charge. Charge under Section 409 IPC and under Section 4 of PDPP Act 1984 was framed against accused Bharat Bhushan Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.2 of 2016:21:16 +0530 Mittal and under Section 411 IPC against accused Pradeep Gupta was framed. Accused persons pleaded not guilty and claim trial. It is pertinent to mention that against the order on charge, the accused Bharat Bhushan Mittal filed revision petition before the ld. Sessions Court and he was discharged vide order dated 04.08.2012. The offence under Section 411 IPC survived against accused Pradeep Gupta and matter was posted for PE. The prosecution examined twenty four witnesses.
3. PW-1 HC Ajay Kamal was examined and deposed that on 28.09.2006 after receiving the rukka through Ct. Anang Pal sent by Inspector Raj Bir Singh for registration of the case and he registered the FIR No.676/2006 (OSR) U/s 406/411 IPC and he proved the carbon copy of the FIR as Ex.PW1/A.
4. PW-2 Ct. Nutan deposed that on 28.09.2003 she was posted as constable and she proved the DD entries No.4 & 5 Ex.PW2/A and Ex.PW2/B regarding receiving of secret information by Inspector Rajbir Sharma that accused Pardeep who used to sell medicines after taking the same from Govt. Hospital.
5. PW-3 ACP Rajbeer Sharma deposed that on 28.09.2006 he was posted as Inspector in Crime Branch and on the said date he received a secret information that one person Pardeep Gupta who used to commit theft of medicines at BJRM Hospital with the help of hospital staff and sell the same in the open market. Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:21:22 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.3 of 20 He deposed that he recorded the DD No.4 qua receipt of secret information and formed a raiding party consisting of ASI Haridhar, HC Ramesh Chand, Ct. Harphool, Ct. Anangpal, Ct. Brij Kishore and Ct. Rajeev. Thereafter he made departure entry vide DD No.5 for going to BJRM Hospital and after reaching there stood at emergency gate. Five passersby were asked to join the raiding party but none agreed disclosing valid excuses. One secret informer was deputed on the emergency gate and he was directed to give signal by moving hand over the head when he saw accused Pardeep Gupta. At about 2.30 p.m. one Maruti Zen of golden colour bearing registration No.DL2C K6474 came out at the Emergency Gate of BJRM Hospital and upon giving signal by the secret informer the aforesaid vehicle was stopped which was being driven by accused Pardeep Gupta and on checking the said vehicle four gatta peti and two bags were found on its rear seat. He was correctly identified by the witness. The said gatta pettis were given serial No.1 to 4 and the bags were given serial No.5 & 6. One sample from each gatta peti was taken and the same was given serial No. P, Q, R and S. The gatta pettis were containing medicines in the shape of capsule. The bags which were given serial No.5 & 6 were containing four types of medicines and four samples were taken out from each bag and were given serial No.AA, BB, CC, DD, EE, FF, GG and HH. The said samples were kept in a plastic box and wrapped in a cloth and were sealed with the seal of SS. Each gatta peti was wrapped in a cloth and sealed with the seal of SS. Each bag was also wrapped in a cloth and sealed with the Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:21:28 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.4 of 20 seal of SS. He deposed that on the medicines some words were mentioned i.e. "supply in Government NCT of Delhi and not for sale". He seized the entire case property vide seizure memo Ex.PW3/A and prepared rukka Ex.PW3/B and sent Ct. Anangpal to PS for registration of the FIR. He deposed that he had mentioned in the Therir for handing over the investigation to SI Sehdev Rana. After registration of the FIR, Ct. Anangpal and SI Sehdev Rana came back at the spot and he handed over accused, seizure memo and case property to SI Sehdev. He deposed that each gatta peti was containing 50 small box.
The witness correctly identified case property after opening the gatta peti serial No.1 Ex.P1, 49 small boxes containing ten strips of medicine Amoxycillin capsule of 500 mg.
The witness has also identified another gatta peti having serial No.2 Ex.P2, 49 small boxes containing ten strips each of Amoxycilling Capsule 500 mg.
The witness has also identified another gatta peti having serial No.3 Ex.P3, 49 small boxes containing ten strips each of Cephalexin Capsule 500 mg.
The witness has also identified another gatta peti serial No.4 Ex.P4 having serial No.2, 49 small boxes containing ten strips of Cephalexin Capsule 500 mg.
The witness has also identified bag serial No.5 containing 389 strips of medicine Cephalexin Capsule 500 mg, 439 strips of Cephalexin tablets 125 mg, 781 Ciprofloxacin tablets 250 mg, 501 Nur Floxacin 400 mg shown to the witness and he correctly Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:21:34 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.5 of 20 identified the same and proved the bag as Ex.P5.
The witness has also identified bag serial No.6 containing 939 strips of medicine Erythromycin tablets 250 mg, 777 strips of Cephalexin tablets 250 mg, 1458 tablets of Ciprofloxacin 500 mg and Co-Trimoxazole tablets shown to the witness and he correctly identified the same and proved the bag as Ex.P6.
He further deposed that after using the seal he handed over the same to Ct. Harphool.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 17.11.2017.
6. PW-4 Dr. Tarun Kumar Ravi, In-charge Paediatrics, BJRM Hospital deposed that since 2002 he was posted at BJRM Hospital and in August 2006 he was in Physically Verification Committee who used to physically verify all the medicines of the aforesaid hospital and after verifying the medicines with challans, the medicines were sent to user department and beside him Dr. Nalin, Dr. Javed, Dr. C.S Bhogal were also in the committee and they all checked manufacturing date, expiry date, batch number and quantity and the medicines were found telly with the challans and he proved the delivery challan/invoices Ex.PW4/A to Ex.PW-4/H. The witness was cross examined by the Ld. Counsel for the accused and discharged on 17.11.2017.
7. PW-5 Dr. Nalini Mittal, Incharge Microbiology, BJRM Hospital deposed that since 2000 she was posted as a doctor at Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:21:39 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.6 of 20 BJRM Hospital and she also deposed on the similar lines of PW-
4. The witness was cross examined by the Ld. Counsel for the accused and discharged on 17.11.2017.
8. PW-6 ASI Harphool Singh deposed that he was member of the raiding party and stated on the similar lines of PW-3. He deposed that SI Sehdev interrogated the accused Pardeep Gupta and arrested him vide arrest memo Ex.PW6/A. Personal search of the accused was conducted vide memo Ex.PW6/B. Second I.O seized the car and RC vide seizure memo Ex.PW6/C and Ex.PW6/D. He recorded the disclosure statement of the accused vide memo Ex.PW6/E. He further deposed that on 30.09.2006 he alongwith SI Sehdev reached at BJRM Hospital and seized the stock register vide seizure memo Ex.PW6/F. He deposed that they seized some partly burnt medicines which were found in a dustbin and proved the seizure memo Ex.PW6/G. He further deposed that I.O seized one Samsung mobile phone which belonged to accused Pardeep Gupta and proved the seizure memo Ex.PW6/X. Thereafter accused Bharat Bhushan was arrested vide arrest memo Ex.PW6/H and conducted his personal search and recorded disclosure statement vide memo Ex.PW6/I and Ex.PW6/J. On 10.11.2006, I.O seized the bill/challan paper of medicines vide seizure memo Ex.PW6/K. On 25.11.2006, store keeper Sumer Chand Gupta handed over the indent book to the I.O who seized vide seizure memo Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:21:45 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.7 of 20 Ex.PW6/L. The witness was cross examined by the Ld. Counsel for the accused and discharged on 15.05.2018.
9. PW-7 Shri Manohar Singh deposed that he used to work as cleaner in BJRM Hospital on contact basis. He deposed that on the day of incident, the Pharmacy In-charge, whose name he was not remembered gave some packets and asked him to throw the same in the dustbin and he threw it under the impression that the same was containing garbage. On the other hand he deposed that he handed over the said packets to one Harish. The witness has not supported the version of the prosecution and has not told the true facts before the Court and he was declared hostile.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 15.05.2018.
10. PW-8 Shri Raghunandan Kumar deposed that he worked as a Field Manager in Global Medsurg Pvt. Ltd. from 2004 to 2015 and verified the invoice number GM/06-07/177 dated 07.08.2006 against which the medicines were sold to Medical Supdt. of BJRM Hospital and proved the original bill as Ex.PW4/E. The witness was cross examined by the Ld. Counsel for the accused and discharged on 15.05.2018.
11. PW-9 Dr. C.S. Bhogal deposed that in August 2006 he was posted as Jr. Specialist Skin and VD in BJRM Hospital. He Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:21:51 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.8 of 20 simply deposed that they had received the information regarding burning of medicines near Biomedical Waste Disposal Unit and he alongwith other doctors went there and saw the process of burning the medicines and they doused the wire. After this incident, an enquiry was conducted by the MS of the Hospital. He deposed that he is having no knowledge about the present case.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 15.05.2018.
12. PW-10 Shri Jagdish Kumar appeared on behalf of some other person and proved the invoice No.000159 dated 21.08.2006 of A.C. Surgipharma Pvt. Ltd. according to which medicines were sold to Medical Supdt. of BJRM Hospital and proved the invoice as Ex.PW4/H. The witness was cross examined by the Ld. Counsel for the accused and discharged on 15.05.2018.
13. PW-11 HC Anangpal deposed that on 28.09.2006 he was posted as Constable in AATS Crime Branch and he was in the team constituted by Inspector Rajbir and deposed on the similar lines of PW-6.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 15.05.2018.
14. PW-12 SI Hari Dutt deposed that on 28.09.2006 he was posted as ASI in ATS Crime Branch and he was team member of Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:21:57 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.9 of 20 Inspector Rajbir Sharma and deposed on the similar lines of PW-
6. He deposed that on 30.09.2006 he again joined the investigation with Second IO and he alongwith him went to BJRM Hospital where MS of the hospital gave stock register and the same was seized vide seizure memo Ex.PW12/A. He further deposed that at the instance of accused Parmod Gupta they went to the place from where they had collected the medicines and met B.B. Mittal and prepared the pointing out memo at the instance of accused Pardeep Gupta Ex.PW12/B. The witness was cross examined by the Ld. Counsel for the accused and discharged on 21.07.2018.
15. PW-13 ASI Ramesh Chand deposed that on 28.09.2006 he was posted as HC in ATS Crime Branch and joined the investigation with Inspector Rajbir Sharma and deposed on the similar lines of PW-6.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 21.07.2018.
16. PW-14 Inspector Sehdev Kumar Rana deposed that on 28.09.2006 he was posted as SI in ATS Crime Branch. He proved the site plan Ex.PW14/A. He deposed on the similar lines of PW-6.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 19.09.2022.
17. PW-15 HC Brij Kishore deposed that on 28.09.2006 he Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:22:05 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.10 of 20 was posted as Constable in AATS and he joined the investigation with Inspector Rajbir Sharma.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 21.07.2018.
18. PW-16 Shri Arun Kumar Sharma deposed that he worked as a Manager in Pharmimax India Co. from 2001 to 2012 and stated that medicine Norfloxacin 400 mg was delivered to BJRM Hospital vide delivery challan No.DC/0501/2007 dated 11.08.2006 and proved the delivery challan as Ex.PW4/G. The witness was cross examined by the Ld. Counsel for the accused and discharged on 06.12.2021.
19. PW-17 Shri Anil Sharma deposed that he was working as a photographer and since 1988 was running his photo studio near BJRM Hospital and on 30.09.2006 at the request of the I.O he clicked the photographs of fully and half burnt medicines and the said photographs were marked A, B and C. The witness was cross examined by the Ld. Counsel for the accused and discharged on 06.12.2021.
20. PW-18 Dr. S.C. Chetal deposed that Dr. Ramesh Chug called him stating that Crime Branch had called for inquiry near the garbage bin of BJRM Hospital and he accompanied with him and crime branch seized the burnt medicines in their presence. He deposed that he had not signed any document.
The witness was cross examined by the Ld. Counsel for Digitally signed the accused and discharged on 02.04.2022. by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:22:11 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.11 of 20
21. PW-19 Dr. Javed Salam, Sr. Specialist Medicine, Aruran Asaf Ali Hospital, Civil Lines appeared and deposed that he had no personal knowledge regarding the present case. He deposed that he had heard from his colleagues that some government supplied machines to the hospital were seized by the police.
The witness was cross examined by the Ld. Counsel for the accused and discharged.
22. PW-20 Anil Sharma, photographer appeared and deposed that I.O called him at Mortuary BJRM Hospital where he had clicked the photographs of burnt medicines and proved the same as Ex.S1 to S3 in running spirit.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 16.08.2022.
23. PW-21 Dr. Ramesh Chugh, Medical Superintendent / CMO of Pandit Madan Mohan Malviya Hospital appeared and deposed that on 30.09.2006 he was posted as Medical Superintendent and on the request of the I.O verified his stock and upon verification inquiry was constituted qua burning of medicines and the same was informed to the I.O. He deposed that the burnt medicines were belonging to the hospital but he was not ascertained whether the said medicines were expired or not. He deposed that in his present, the I.O had taken the burnt medicines in his possession and proved the seizure memo Ex.PW6/G. He had also hand over the stock register maintained Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:22:17 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.12 of 20 by the store keeper and same was seized by the I.O and proved the same as Ex.PQ. He also proved the seizure memo Ex.PW6/F qua list of medicines which was prepared by the committee.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 16.08.2022.
24. PW-22 Sumer Chand Gupta, Pharmacist, CDMO (NWD) Sector-13, Rohini deposed that in the year 2006 he was posted as Store Keeper at BJRM Hospital and their duty was to receive the medicines and after being physically verified by the committee constituted by the Medical Superintendent. Thereafter they issued the indent book by the signature of Pharmacy In- charge and Store In-charge and medicines were issued by the Pharmacist. He further deposed that he handed over the bills/challan to the I.O with the permission of the officials of the hospital.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 16.08.2022.
25. PW-23 Yogesh Kumar Chauhan, Jr. Accounts Officer, BRJM Hospital, deposed that on 18.08.2006 he was posted as Jr. Accounts Officer and on the instructions of MS of BJRM Hospital physical verification of drugs mentioned in the report was carried out on 30.09.2006 and stock of medicines in the store of the hospital was found correct and a report was prepared and the same was proved as Ex.PW23/A. The witness was cross examined by the Ld. Counsel for Digitally signed the accused and discharged on 16.09.2022.
by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:22:22 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.13 of 20
26. PW-24 Dr. Anirudha Pandey, Consultant ENT, Bhagwan Mahavir Hospital, Pitampura, Delhi deposed on 30.09.2006 he was posted as ENT Specialist at BJRM Hospital and as per the instructions physical verification of drugs was carried out and the report was prepared in this regard and the stock of the medicine in the store was found correct.
The witness was cross examined by the Ld. Counsel for the accused and discharged on 16.09.2022.
27. Thereafter the case was listed for statement of accused Devender Kumar and his statement U/s 313 Cr.P.C was recorded. In his statement he has stated that he has been falsely implicated in the present case and recovery if any has been planted upon him.
28. No defence evidence was led by the accused. Accordingly, the matter was posted for final arguments.
29. Final arguments were advanced by the accused and the Ld. APP for the State. Ld. APP submitted that the accused be convicted as the prosecution has been successful in proving the ingredients of the offences for which the accused has been charged. Further accused has not led any defence evidence and the prosecution has proved the case beyond reasonable doubt against accused Pardeep Gupta.
On the other hand Ld. Counsel for the accused Pardeep Gupta that the accused has been falsely implicated. The Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:22:28 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.14 of 20 recovery shown was planted upon the accused and the police has not conducted the investigation in fair manner. Ld. Counsel has prayed for acquittal of the accused Pradeep Gupta.
Reasons and Decision:
30. The accused Pradeep Gupta has been charged for the offence under Section 411 IPC which is as follows:
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
To prove the said offence, the prosecution had to show that the medicines recovered from the accused Pradeep Gupta were stolen from the hospital and he retained them believing to be stolen. It is pertinent to mention that the complaint of the medicines missing was never registered by the concerned hospital Babu Jagjivan Ram Memorial Hospital (BJRM) but the case was registered on a secret information. The police officials did not inform about the information to any head official of the concerned hospital. Further important fact to note is that the witnesses from the hospital who were part of the physical verification committee i.e. PW4 Dr. Tarun Kumar Ravi, PW5 Dr. Nalini Mittal, PW23 Yogesh Kumar Chauhan (Junior Account Officer) and PW24 Dr. Anirudh Pandey have deposed that the stock of medicines in the store of the hospital was found correct as per the register maintained by the hospital and the medicines Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:22:33 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.15 of 20 were found tally with the challans after the stock was physically verified on 30.09.2006 i.e. after he reported incident on 28.09.2006. The said fact raises serious doubt on the case of the prosecution as to how the stock of the hospital was found intact. The stock of the hospital should have been short if the allegations that the medicines were stolen and retained by the accused Pradeep Gupta are to be believed. Further, no investigation has been carried out to find out where and to whom the alleged stolen medicines were being sold.
31. The seizure memo and the seal of the IO:
The joint pleadings of the testimonies of PW3, PW6, PW11, PW12, PW13 and PW15 reveals that the IO prepared the seizure memo Ex.PW3/A and sealed the recovered medicines with the seal of 'SS'. It is reflected in their testimonies that the rukka was sent for registration of FIR after the sealing of the case property. After registration of FIR, PW11 came back to the spot and handed the copy of FIR and the rukka to the 2nd IO PW14. The narrations of the events indicates that the seizure of the medicines were done at the spot prior to the registration of the FIR. All the witnesses have stated that the case property was sealed and seized prior to the registration of the FIR, however, the seizure memo Ex.PW3/A bears the FIR number of the case. The State has failed to provide any reason as to how the FIR number was known to the witnesses prior to its registration to have been mentioned on the documents. Ordinarily in both the documents, the FIR number should not find any mention as the Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:22:39 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.16 of 20 document came into existence before the registration of the FIR. The FIR number appears to have been mentioned in continuity and same ink as rest of the content of the documents. There is no suggestion put by the prosecution as to whether any space was left on the documents for mentioning the FIR number after its registration. The Hon'ble High Court of Delhi has observed in para 4 of 'Mohd. Hashim Vs. State', 82 (1999) DLT 375 that "the prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex.PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives right to two inferences that either the FIR was recorded prior to the alleged recovery of the contra band or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contra band in the manner alleged by the prosecution".
The above ruling of the Hon'ble High Court squarely applies to the facts in hand and dents the prosecution case.
Coming further, the IO has not deposed as to whom the seal was handed over to after the sealing of the medicines. One witness PW11 has stated that the seal was handed over to PW6. However, the said fact has not been deposed by PW6 and even the IO who had sealed the case property. No handing over memo was prepared by the IO at the time of handing over the seal and no document has been placed on record that the seal was ever deposited in Malkhana creating a doubt as to whether the case property was actually sealed on the spot or in the police station. The seal was also not handed over to any independent witness and as the seal remained with the police officials of the same Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.17 ofDate:
202024.03.26 16:22:45 +0530 police station, the possibility of tampering with the case property cannot be ruled out. Further, all the case property produced in the court i.e. four gatta peti did not bear proper seal. The gatta peti either had illegible seal or broken seal. The prosecution is expected to exercise caution while sealing the case property and keeping the same intact when the complete case of the prosecution revolves around establishing the recovery of the case property from the accused. For convicting the accused, the recovery was to be shown to be blemish free which in the present case, the prosecution has failed to do.
32. Non-joining of public witnesses:
No public witness has been joined by the prosecution at the time of investigation despite the availability of the public person as revealed from the testimony of the abovementioned witnesses i.e. PW3, PW6, PW11, PW12, PW13 and PW15. The witnesses stated that the public witnesses refused to join the investigation. The Court fails to understand as to why no action was taken by the IO against the refusing public person as the IO is empowered to take steps against them under law. The availability of independent witnesses is not denied by the police witnesses. At least, he should make sincere efforts in this regard. If someone refuses to join the investigation without any justifiable reason, proper notice should be given to him. Merely stating that the public persons refused to join the investigation is not sufficient to serve the purpose of prosecuting agency.Digitally signed by
VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date: 2024.03.26 16:22:50 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.18 of 20 In the case of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), the Hon'ble High Court of Delhi has observed as under :
"It is repeatedly laid down by this Court that 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 when we.....".
It has come in evidence that no public person was joined in the investigation despite their availability at the spot. The efforts allegedly made by the IO are not enough to qualify the criteria of sincere efforts. The gatekeeper of the hospital or any other official from the hospital was also not joined in the raiding party. The Court is aware of the hardships during the investigation faced by the police officials in joining the public witnesses and the non-joining of the public witnesses cannot be sole ground for giving benefit to the accused, however, since the case of the prosecution is already doubtful as observed above, evidence of independent witnesses would have provided necessary corroboration to the prosecution case with respect to the recovery of the case property from the accused. Further, it has been deposed that seven police officials and one secret informer had formed the raiding party and left in a private vehicle to the hospital. The witnesses in the raiding party failed to depose about the make of the vehicle in which they had left for the raid and who was the owner of the said vehicle raising a doubt as to whether the raid was genuinely conducted in reality or not. Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Date:
2024.03.26 16:22:55 +0530 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.19 of 20
33. The cardinal principal of law cannot be forgotten that the prosecution has to prove its case beyond all reasonable doubts. The standard of proof is not preponderance of probabilities but proof beyond all reasonable doubts. It is a well settled legal preposition that the benefit of doubt goes in favour of accused. For the reasons and discussions above, it would not be safe to convict the accused merely on the basis of suspicion. As the prosecution case is laden with weak evidence, it cannot be ruled out that the case property was planted upon the accused Pradeep Gupta.
34. In view of the above discussion, reasons and well settled legal proposition, the prosecution has failed to prove its case against accused Pradeep Gupta beyond reasonable doubt as per criminal jurisprudence. Accordingly, accused Pradeep Gupta stands acquitted in the present case for the offence under Section 411 IPC.
File be consigned to record room after due compliance. Digitally signed by VASUNDHARA VASUNDHARA CHHAUNKAR CHHAUNKAR Announced in open Court Date: 2024.03.26 on 26.03.2024 16:23:02 +0530 (VASUNDHRA CHHAUNKAR) ACMM, NORTH-WEST DISTRICT ROHINI COURTS, DELHI/26.03.2024 FIR No.676/2006 State Vs. Pradeep Gupta Etc PS: Jahangir Puri Page No.20 of 20