Delhi District Court
State vs Narender Dakshit Etc on 29 January, 2019
THE COURT OF SH. BABRU BHAN
METROPOLITAN MAGISTRATE - 07 (CENTRAL), ROOM NO. 345,
TIZ HAZARI COURTS, DELHI.
STATE
VERSUS
NARENDER DAKSHIT ETC.
CASE NO. 297077/2016
FIR No. 123/04
P.S- SUBZI MANDI
U/s- 284/285/337/304A IPC
1. Date of commission of offence : 07.04.2004
2. Name of the Complainant : DULI CHAND
S/o- Late Dhani Ram
R/o- H.No. 4801, Gali Mitra,
Roshanara road, Subzi Mandi,
Delhi-7.
3. Name of the accused, parentage : (1) NARENDER DIKSHIT
and address S/o- Sh. Ram Singh Sharma,
R/o- 1299/87, Tri Nagar,
Delhi.
(2) CHARANJEET LAL
S/o- Sh. Amar Nath,
R/o- T-1099, Bhagat Singh
Nagar, Basti Punjabian, near
Filmistan Cinema, Delhi.
(3) SANJAY ANAND
S/o- Late Kulbhushan Anand,
R/o- 6705, Block No. 9, Street
No. 8, Dev Nagar, Karol
Bagh, Delhi.
(4) SHER JUNG BAHRI
S/o- Sh. Sudershan Lal Bahri,
(SINCE ABATED)
4. Date when judgment : 19.12.2018
was reserved
5. Date when Judgment : 29.01.2019
was pronounced
6. Offence Complained of : U/s 284/285/337/304A IPC
or proved
7. Plea of accused : Accused persons pleaded not
guilty.
8. Final Judgment : ACQUITTED
JUDGMENT
Brief Statement of reasons for the decision of the case
1. Two incidents of fire had taken place at Jaipur Golen Transport Company in quick succession. First incident had taken place on 04.04.2004. Same was intimated to PS- Subzi Mandi and was recorded in form of DD No. 30A. Said DD was assigned to SI Rajeev Kumar. He reached the spot and came to know that some pesticides and other chemicals were negligently stored in the godown of the said transport company. He prepared rukka and FIR No. 116/04 was registered.
2. Again, on 07.04.2004, an information regarding death of a child was reported to PS- Subzi Mandi. Said information was again recorded in form of DD No. 6A. Same was assigned to ASI Jai Kumar. In pursuant to the said DD, he reached H.No. 4801, Gali Mitrawali, Roshanara road, Delhi where complainant Duli Chand informed him that fire had taken place in godown of Jaipur Golden Transport Company and noxious gas was continuously emitting from there. In the morning of 06.04.2004 poisonous smoke again started rising from Jaipur Golden Transport Company. On inhaling the poisonous fumes, son of complainant Duli Chand started showing the symptoms of poisoning. He was taken to Hindu Rao Hospital where he was declared brought dead. On investigation, it was revealed that the incident had taken place due to the emission of poisonous gas from the godown of Jaipur Golden Transport where pesticides were stored. On the statement Ex. PW1/A of complainant Duli Chand, another FIR No. 123/04 was registered.
3. During course of investigation conducted on 04.04.2004, Inspector Rajeev Kumar PW10 got clicked the photographs of the spot by private photographer namely Sanjay. He prepared site plan Ex. PW10/C. One tin containing Sanfos was seized from the godown of the transport company vide memo Ex. PW10/D. The sealed pullanda was affixed with the seal of RK.
4. On 08.04.2004, IO seized one letter Ex. X1 written by V. Kumar, the authorized signatory of the aforesaid company alongwith annexure A to C vide memo Ex. PW10/E. As per the letter X1, accused Narender Dixit was working as delivery manager, accused Charanjeet was working as delivery manager and accused Sanjay was working as delivery cum godown incharge and was entrusted with the upkeepment of the godown under the supervision of Sherjung Bahri, Director of the Company.
5. On 09.04.2004, IO Inspector Rajeev Kumar interrogated and arrested Charanjeet and Narender Dixit in both the FIRs. Arrest memos Ex. PW1/F and Ex. PW1/F1 and Ex. PW1/G and Ex. PW1/G were prepared respectively. Personal search was also conducted vide memos Ex. PW1/H and Ex. PW1/H1 and Ex. PW1/I and Ex. PW1/I1.
On 10.04.2004, IO interrogated and arrested accused Sanjay in both the case FIRs. Arrest memo Ex. PW1/J and Ex. PW1/J1 were prepared respectively. Personal search was also conducted vide memo Ex. PW1/K and Ex. PW1/K1.
On 10.04.2004, IO interrogated and arrested Sher Jung Bahri in case FIR No. 116/04.
6. All the accused persons were released on bail. During further investigation, IO collected investigation report Ex. PW10/M along with annexures from the office of Directorate of Plant protection, Quaranting and Storage, Faridabad, Haryana regarding the cause of fire at the godown of Jaipur Golden Transport Company.
7. IO Inspector Rajeev Kumar also visited Sandhya Organic Pvt. Ltd, IIIrd Phase, GIDC, Wapi and obtained information regarding consignment sent to Jaipur Golden Transport Company. Sandhya Organic Pvt. Ltd provided letter Ex. PW10/N to the IO. IO also obtained the articles of consignment of Jaipur Golden Transport Company and prepared memo Ex. PW10/O.
8. On 25.04.2004, IO sent samples viscera to FSL and collected report Ex. PW8/A. He collected the report regarding cause of death of Aakash in case FIR No. 123/04. On completion of investigation, he prepared charge- sheet and filed the same accusing the accused persons namely Narender Dixit, Charanjeet, Sanjay and Sher Jung Bahri for the offence U/s 284/337/304A IPC in both the case FIRs.
9. This Court may notice that proceedings against Sher Jung Bahri have already been abated vide order dated 20.01.2015. Thus, through this judgment, fate of remaining accused persons is to be decided.
10. It appears that the incident of fire first occurred on 04.04.2004 regarding which FIR No. 116/04 was registered. However, the poisonous fumes kept on emitting from the godown and caused the death of Aakash, son of Duli Chand regarding which another FIR bearing No. 123/04 was registered. Since both the incidents were forming the part of same incident of fire, therefore, Ld. Predecessor vide order dated 19.05.2006, directed the joint trial in both the aforesaid case FIR in terms of section 219 and 223 Cr.P.C.
11. Formal charges for the offences U/s 284/285/337/304A IPC were framed against accused persons on 17.03.2015. The accused persons pleaded not guilty and claim to be tried.
12. During prosecution evidence, 26 witnesses have been examined.
13. Duli Chand PW1 has stated that on 04.04.2004, a fire had broken out in Jaipur Golden Transport Company at about 09.30 am. On 06.04.2004, his son Aakash was feeling uneasy and unconscious. Thereafter, he started vomiting. He was removed to Hindu Rao Hospital where he was declared brought dead. They brought the body of the deceased home and informed the police. Police recorded his statement Ex. PW1/A. Body of the deceased was taken for postmortem. This witness identified the dead body of his son vide memo Ex. PW1/B.
14. PW2 HC Goverdhan Singh was on duty in Hindu Rao Hospital on 07.04.2004 when many patients were brought there for medical examination including Rajesh and Ankush. This witness handed over blood samples and seal to the IO who seized the same vide memo Ex. PW2/A. 15 PW3 ASI Manrakhan was duty officer at PS- Subzi Mandi on 07.04.2004. He registered the present case FIR Ex. PW3/A. After registration of FIR, he endorsed rukka Ex. PW2/B.
16. PW4, PW6, PW7, PW17, PW21, PW23, PW24 and PW25 are the residents of locality. They all have deposed in sync that on the date of incident, fire had broken out in Jaipur Golden Transport Company and after inhaling the poisonous gas, they either fell sick or became unconscious.
17. PW8 Amarpal Singh, Assistant Director, Chemistry, Regional Forensic Laboratory had examined the exhibits. His detailed report is Ex. PW8/A.
18. PW9 R.K. Saini produced the incorporation certificate Ex. PW9/A of Jaipur Golden Transport Company Ltd.
19. SI Jai Kumar PW11 has deposed that on 07.04.2004, he was posted at PS- Subzi Mandi as ASI. On that day, he received DD No. 6A Ex. PW11/A. He alongwith HC Harjeet Singh PW5 reached the spot and recorded the statement Ex. PW1/A of complainant Duli Chand and prepared rukka Ex. PW11/B and sent Ct Harjeet for registration of FIR. Thereafter, this witness received DD No. 9D Ex. PW11/C. In pursuant to the said DD, he reached Hindu Rao Hospital and collected two MLCs. He also got conducted the postmortem of Aakash. Report is Ex. PW11/D. The sample viscera of Aakash was seized vide Ex. PW11/E. Further, he collected some documents given by V. Kumar, claim officer cum authorized signatory of Jaipur Golden Transport Company. Documents are Ex. PW11/F to PW11/I.
20. Ms. Rajrani, ADC, NDMC PW12 had sealed the godown of Jaipur Golden Transport Pvt. Ltd on the directions of Deputy Commissioner.
21. R.M. Shukla PW13 has deposed that on 03.06.2004, he was posted as Deputy Director, ENTO Faridabad. On that day, an inspection team was constituted by plant protection advisor to Government of India comprising engineer S.K. Gosh, Dr. R.S. Sharma and the witness. The team inspected the godown of Jaipur Golden Transport where extremely toxic pesticides were found stored.
22. R.S. Sharma PW14 has deposed in sync with PW13 R.M Shukla.
23. Pankaj Parikh PW15 has deposed that he was working with Sanjay Organic Chemicals Pvt. Ltd. In 2004. The company was engaged in the business of aluminum phosphide and Zinc phosphide. The abovesaid company had sent Zinc phosphide to Delhi through Jaipur Golden Transport vide consignment mentioned in Ex. PW10/N.
24. Dr. S.K. Prasad PW18 was posted at Hindu Rao Hospital in the year 2004. This witness has proved the MLC Ex. PW18/A to PW18/P.
25. K.V. Singh, Record Clerk Hindu Rao Hospital PW19 proved the MLC Ex. PW19/A to Ex. PW10/J.
26. PW22 Dr. Khulbhushan Goel has proved the MLC of Aakash Ex. PW11/D. This witness has further deposed that the death of Aakash was result of phosphide poisioning. The report containing his opinion is Ex. PW22/A.
27. In their statements recorded U/s 313 r/w 281 Cr.P.C, all the accused persons have denied the correctness of the case of the prosecution. Accused Charanjeet Lal has tendered his explanation that his job profile was to brief the drivers of the company about the place of delivery of the goods. He had no concern either with the upkeepment of the godown or for safety for storage of goods. He further explained that he was not even aware that what kind of goods were stored in the godown.
The explanation putforth by accused Narender Dixit is also on the same lines as furnished by accused Charanjeet Lal. This accused further added that he was not even present at the spot at the time of incident and was subsequently informed about the same.
Accused Sanjay Anand has also explained that it was not within the scope of his job profile to upkeep or maintain the godown.
28. Accused Narender Dakshit appeared as DW1 in his defence. He again repeated that he had no responsibility of upkeepment of the godown. He has relied upon a letter written by K.M. Bhatnagar, the director of the company.
Following the line of defence adopted by accused Narender Dixit, accused Charanjeet Lal also entered the witness box and he also relied upon a letter written by K.M Bhatnagar, director of the company.
Accused Sanjay Anand DW3 repeated the defence which has been taken by him during his statement recorded U/s 313 Cr.P.C.
29. Arguments heard. Record has been perused.
30. After hearing the arguments, this Court has carved out the following point of determination:
i. Whether the pesticides were stored in Jaipur
Golden Transport Company Ltd,
ii. Whether storage of pesticides in itself is an
offence,
iii. Whether any particular mode of storage have
been provided,
iv. Whether the pesticides found stored at Jaipur
Golden Transport Company were combustible or the combustible nature of the pesticides was the cause of fire, v. Whether the accused persons were responsible for any negligence,
31. PW10 Inspector Rajeev Kumar has deposed in his Court statement that in pursuant to DD No. 13A Ex. PW10/A, he reached Jaipur Golden Hospital alongwith Ct Tejpal. On spot, he learnt that some fire had broken out and fire brigade was in pursuit of dowsing the flames. During investigation, this witness seized one container of Sanphos vide seizure memo Ex. PW10/D.
32. R.M. Shukla PW13 and R.S. Sharma PW14, both working as Deputy Director ENTO, Faridabad have deposed that on 03.06.2004, an inspection team of which they were also the members was constituted and this team had inspected the premises of Jaipur Golden Transport Company. The inspection team conducted an inspection and found that highly toxic chemicals had been stored in the godown of Jaipur Golden Transport. The report is Ex. PW10/M.
33. Pankaj Parikh PW15 has deposed that he was working with Sanjay Organic Chemicals Pvt. Ltd. The company was engaged in business of Aluminum phosphide and Zinc phosphide. The Sanjay Organic Chemicals had sent Zinc phosphide through Jaipur Golden Transport to Delhi vide consignment Ex. PW10/N.
34. The cross-examinations of all the above witnesses would show that not even a suggestion has been whispered disputing that the chemical pesticides were stored in the godown of Jaipur Golden Transport Company. The evidence of the witnesses above is sufficient to show that Sanjay Organic Chemicals had sent a consignment of Zinc phosphide and Aluminum phosphide through Jaipur Golden Transport Company to Delhi. There is sufficient material on record to show that a consignment of pesticides containing Zinc phosphide and Aluminum phosphide were stored in the godown of Jaipur Golden Transport Company Ltd.
35. Next question is whether mere storage of pesticides is an offence. The prosecution has nowhere claimed that Jaipur Golden Transport Company had committed any offence by merely storing the Zinc phosphide and Aluminum phosphide. It is not the case of the prosecution that storage itself is an offence.
36. Further, whether there is a particular mode of storage of the pesticides and whether the accused persons were liable for handling or storing the pesticides in violation of the prescribed mode. Neither any legislation or guidelines prescribing a particular mode for storing the pesticides has been purforth before the Court by the prosecution nor it is claimed that the accused persons had stored the pesticides in violation of any such guidelines.
37. During the investigation, the investigating officer Inspector Rajeev Kumar PW10 had given a notice to the authorities of the Jaipur Golden Transport company thereby asking them to provide the details of the persons responsible for the upkeepment of the godown. In response to the said notice, one V. Kumar gave three replies PW11/G, PW11/H and PW11/I. Investigating officer seized the replies vide memo Ex. PW10/E. As per the replies, accused persons were responsible for upkeepment and maintenance of the godown. Placing reliance upon these notice, Ld APP has argued that the accused persons were responsible for the upkeepment of the godown. While inviting the attention of the Court towards the cross-examination of PW10, Ld APP has further argued that highly inflammable chemicals were stored at the godown but no fire safety measures were taken. Ld APP has raised the contention that accused persons being responsible for upkeepment of the godown are to be held liable for criminal negligence for not taking the appropriate fire safety measures despite knowing that highly inflammable chemicals were stored in the godown.
38. Dealing with the aforesaid arguments, Ld defence counsel has first argued that the letters on basis of which the accused persons are sought to be held liable for upkeepment of the goods are not proved by the prosecution. Secondly, the Zinc phosphide and Aluminum phosphide are not inflammable unless and until same are brought into the contact of humid air or water. Ld counsel has raised the contention that the prosecution has no where proved that Zinc phosphide and Aluminum phosphide were stored in the godown in such a manner that there was possibility of their being coming into the contact of humid air or water. Ld counsel has further argued that Sanjay Organic Pvt Ltd had send the consignments in air tight tins and pouches. Probably, the fire which had broken out due to unknown circumstances melted the tins and the pouches which led to the exposure of Aluminum phosphide and Zinc phosphide with humid air. While drawing the attention of the Court towards the statement of PW10 where he has stated that when they reached the spot, fire brigade was trying to extinguish the fire with water. Ld counsel has raised the contention that an accidental fire had exposed the Zinc phosphide and Aluminum phosphide and the water poured by fire brigade led to the chemical reaction which released phosphine gas which is highly inflammable. Ld counsel has concluded the arguments with the submissions that neither the accused persons were responsible for upkeepment of the godown nor any inflammable chemical was stored which required additional fire safety measures.
39. The aforenoted arguments advanced by the parties have raied two points for determination before this Court. Firstly, whether the accused persons were responsible for upkeepment of the godown as mentioned in letters Ex. PW11/G, PW11/H and PW11/I given by one V. Kumar. Second point is whether any inflammable chemical were stored which required additional fire safety measures.
40. The documents Ex. PW11/G, PW11/H and PW11/I were issued by one V. Kumar. The said V. Kumar unfortunately expired before his signatures on the documents could be proved on record. Further, no efforts were made by the prosecution to summon and examine any other witness from Jaipur Golden Transport Company to identify the signatures of V. Kumar. Thus, the documents Ex. PW11/G, PW11/H and PW11/I not proved. Besides these documents, no additional evidence has been produced to show that accused persons were responsible for the upkeepment of the godown. In considered opinion of the Court, prosecution has failed to prove beyond reasonable doubt that it was responsibility of the accused persons to upkeep and maintain the godown to keep it safe for storage of hazardous chemicals like Zinc phosphide and Aluminum phosphide.
41. For sake of argument, lets assume for a moment that accused persons were responsible for upkeepment of the godown. Still, the prosecution needs to prove that the lapses on part of accused persons were the root cause of the fire which had broken out in the godown of the Jaipur Golden Transport Company. One the argument advanced by the prosecution in this direction is that highly inflammable and combustible chemicals were stored in the godown and therefore, the accused persons were responsible for taking extra fire safety precautions. In context of this argument, the first point which arises for adjudication is as to whether the Zinc phosphide and Aluminum phosphide are so inflammable that extra fire safety measures are required to be taken. In this regard, this Court can take reference of the guidelines issued by World Health Organization which are also adopted by Indian Standard Code of Safety for Zinc Phosphide. I may note that copy of these guidelines have been placed on record by the Ld defence counsel during final arguments. These guidelines would show that Zinc phosphide and Aluminum phosphide are not combustible but forms flammable gas namely phosphine on contact of water or damp air. Since, the consignment of Aluminum phosphide and Zinc phosphide was sent by Sanjay Chemicals Pvt Ltd in air tight cans and plastic pouches, therefore, this possibility can be safely ruled out that any combustible chemicals were stored in the godown and extra fire safety measures were required to be taken.
42. Further, the prosecution has nowhere elaborated that what fire safety measures were to be taken which were actually not taken by the accused persons. Nothing has been produced on record to show that the storage of allegedly inflammable chemicals was the real cause of fire.
43. From the circumstances delineated above, the real picture appears to be that probably an accidental fire had broken out. The heat produced by the fire melted the containers of Zinc phosphide and Aluminum phosphide which led to the exposure of the chemicals with the water poured on the flames by the fire brigade. When Zinc phosphide and Aluminum phosphide came into contact of water, phosphine gas was released which aggravated the situation and the unfortunate incident resulted into a death and number of injuries to the residents of the locality.
44. Needless to say, the incident was very unfortunate but the question for adjudication before this Court is that who was responsible for the incident. In considered comprehension of this Court, the material produced on record is not sufficient to show that the incident of fire and thereafter, the emission of poisonous fumes into the air was result of negligence on the part of the accused. Their role and responsibility is highly doubtful. The benefit of doubt is given to the accused persons. Accused persons are accordingly acquitted.
File be consigned to Record Room after due compliance after obtaining bonds in terms of Section 437A Cr.P.C.
Digitally signed BABRU by BABRU
BHAN
ANNOUNCED IN THE OPEN
COURT ON 29.01.2019.
BHAN Date: 2019.02.05
12:52:32 +0530
(BABRU BHAN)
METROPOLITAN MAGISTRATE-07(C)
TIS HAZARI COURTS, DELHI