Delhi District Court
State vs . Sanjay Kumar@ Sanjay Shokeen on 6 December, 2012
IN THE COURT OF SH. HEM RAJ: METROPOLITAN MAGISTRATE:
(WEST)09:TIS HAZARI COURTS:DELHI
STATE Vs. SANJAY KUMAR@ SANJAY SHOKEEN
FIR No : 7/11
U/S : 25 Arms Act 1959
P.S : VIKAS PURI
1. Serial No. of the Case : 145/3/11
2. Unique ID No, of the : 02401R0126312011
3. Date of Commission of Offence : 12.01.2011
4. Date of institution of the case : 11.03.2011
5. Name of the complainant : ASI Rajbir
6. Name,parentage & address : Sanjay Kumar @ Sanjay Shokeen
of accused S/o Late Sh. Om Parkash
R/o, 106 Village Kamruddin Nagar
Delhi.
7. Offence complained : 25 Arms Act 1959.
8. Offence Charged with : 25 Arms Act 1959.
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Acquitted
11.Date of Final Order : 06.12.2012
J U D G M E N T
1 The prosecution has filed a charge sheet against the accused on the allegations that on 12.01.2011 at about 8.25 PM near the gate of Jal Board Staff Quarters, Keshopur, Vikas Puri, Delhi, accused was apprehended at the FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.1/12 instance of the secret informer and was found in possession of one country made Katta containing one live cartridge without any permit and license thereof. He was also found in possession of three more live cartridges as well as one buttondar knife in contravention of the notification issued by Delhi Government. Accordingly, accused was alleged to have committed the offence U/s. 25 Arms Act, 1959. The criminal law was set into motion and the investigation was commenced. 2 After the completion of the investigation a charge sheet under section 25 Arms Act was filed against the accused. In compliance of section 207 Cr. P.C. the copy of the charge sheet along with other documents were supplied to him and later on vide order dated 10.08.2011, charge for the offence under section 25 Arms Act was framed to which the accused pleaded not guilty and claimed trial.
3 In order to prove its case against the accused, the prosecution examined as many as ten witnesses.
4 PW1 ASI Bal Kishan was the DO in this case.
5 PW2 Ct. Subhash participated in the investigation. FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.2/12 6 PW3 HC Rajender Singh also participated in the investigation. 7 PW4ASI Rajbir Singh was the first IO of the case.
8 PW5 ASI Rajender was the second IO of the case.
9 PW6 Sh. Puneet Puri was the FSL Expert.
10 PW7 ASI Ishwar Dayal took the accused on PC and tried to search the alleged supplier of the arms, Hamid Ansari.
11 PW8 HC Krishan Avtar was the MHCM in the PS. 12 PW9 HC Jai Bhagwan deposited the sealed pullinda in the FSL. 13 PW9 IPS Rishi Pal proved the sanction under section 39 Arms Act. 14 In his statement under Section section 313 Cr.P.C the accused stated that he is innocent and has been falsely implicated in the case by the police. He chose not to lead any defence evidence.
FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.3/12 15 I have heard the Ld. APP for the State, Sh. Kumar Avinash as well as Ld. LAC Sh Aparbal Singh. I have also gone through the oral and documentary evidence available on the record carefully.
16 It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond the reasonable doubt.
17 On the other hand, the Ld. Defence Counsel Sh. Aparbal Singh,Ld. LAC submitted that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt.
18 I have gone through the oral and the documentary evidence as well as the material available on the record. In my opinion, the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt on the following grounds:
Delay in sending the recovered articles to the FSL 19 In the judgment of Modan Singh Vs. State of Rajasthan , FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.4/12 (1978)4SCC 435 the effect of the inordinate delay in sending the recovered arms was considered by the Hon,ble Supreme Court in the para 9 of the judgment in the following words:
"9 .........The recovery of the pistol, Ex. 8 from the person of Modan Singh was on the 20th December at the police station itself and the recovery memo is Ex. P. 23. An empty cartridge, a live cartridge and a pistol case was recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on 621967 by a special messenger. The investigating officers would only say that the material objects were kept sealed upon 14121966. The prosecution is silent as to in whose custody the material objects were till 621967 ...................................... ."
In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, while relying upon the judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Punjab 1991CAR 81 and Santa Singh Vs. State of Punjab, AIR 1956 SC 526, the Hon'ble Mr. Justice Dalveer Bhandari as His Lordship then was, took the view that the delay of 12 days in sending the samples to the CFSL proved fatal to the prosecution.
20 As per the facts of the prosecution case, the country made pistol and live cartridges were recovered from the possession of the accused on 12.01.2011 and the same was deposited in the Malkhana on the same day as well. PW8 HC Krishan Avtar (MHCM), inadvertently numbered as PW9 also deposed the same. The said pullinda was sent to the FSL through PW9 HC Jai Bhagwan inadvertently numbered as PW10 on 25.01.2011. PW6 FSL Expert, Puneet Puri also deposed FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.5/12 that the said pullinda was received in the FSL on 25.01.2011. There was a delay of almost 13 days in sending the samples, which remained unexplained on the record. No plausible reason whatsoever has been furnished by the prosecution as to why the sealed pullinda remained in the police station for so long. When the seal was always available with the IO during the said period the tempering of the case property cannot be ruled out. The sending of the sealed pullinda at the earliest would have lent credence to the case of the prosecution enormously. In my opinion, the sending the sealed pullinda to the FSL after this much delay has affected the sanctity of the prosecution case.
Absence of CFSL Form 21 In Desh Raj @ Dass V/s State, 83 (2000) DLT 262, His Lordship Hon'b'e Mr. Justice Dalbeer Bhandari, as His Lordship then, was dealing with a case under Section 402 IPC and 25 Arms Act. In that case, it was held in para 25 that:
" Neither depositing the CFSL form in the Malhkana nor sending it alongwith the sample parcel to the office of the CFSL puts a question mark on the credibility of the prosecution version."
In Lalman Vs. State 75(1998) DLT 224, it was observed by Delhi High Court as under:
"CFSL form is a valuable safeguard to ensure that the sample is not FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.6/12 tempered with till its analysis by the CFSL analyst. The CFSL form should not only br prepared and sealed by the officer making the seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO to whom the sample and case property is handed over and the same should accompany the sample to the CFSL. The purpose of the specimen seal is to compare the same with the seals on the sample parcels meant for analysis and report by CFSL to ensure that the purity of samples are not tempered with. In the absence of the CFSL form, it cannot be said that the purity of the sample remained intact. Benefit of its absence should go the accused."
The same view was taken in Rajan Ali vs. The State( Delhi Administration) 81(1999)DLT 194 by Delhi High Court. In the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon'ble Mr. Justice Suresh Kait, also observed the same.
The evidence led by the prosecution in this regard would show that PW Ct. Subhash, HC Rajender Singh and first IO ASI Rajbir Singh deposed that the FSL form was prepared. IO ASI Rajbir Singh deposed that he sealed the FSL Form alongwith the case property and handed over the same to second IO ASI Rajender. ASI Rajender deposed that he deposited the case property in the malkhana. PW HC Krishan Avtar MHC(M) deposed about the deposit on the sealed pulinda but he did not depose that the FSL form was also deposited with the sealed pullanda in this case. PW HC Jai Bhagwan who took the sealed pulinda to the FSL was also silent about the FSL Form. PW Puneet Puri, FSL Expert also did not say anything about the FSL Form. In fact, the FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.7/12 acknowledgment of the FSL Form Ex. PW9/C is also silent about the fact whether any FSL Form alongwith the sealed parcel was deposited in the FSL. The relevant extracts of register no. 21, Ex. PW9/B is also silent about the FSL Form. Hence, it was not clear on the record that whether the specimen seal and the seal on the sealed pulllinda were similar or not. As held in the aforesaid judgments and especially recently in the case of Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, I opine that the nonsending the FSL form to the FSL alongwith the samples and not proving the same on the record renders the case of the prosecution doubtful.
FIR No. on the documents prepared prior to its registration: 22 The seizure memo Ex.PW3/B and the sketch memo Ex.PW3/A were prepared before the registration of the FIR but the same demonstrate that the FIR has been mentioned on the same which reveals that the FIR number was added on those documents later on and the same causes doubt in the story of the prosecution. In the judgment of Giri Raj V/s State 83 (2000) DELHI LAW TIMES 201, the Hon'ble High Court of Delhi held in Para 5 as under:
"The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex. PW2/A had appeared on the top of the said documents, which were allegedly on the spot before its registration. This gives rise to two inferences that either the FIR (Ex. PW2/A) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.8/12 of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution. That being so, the benefit arising out of such a situation must necessarily go to the appellant".
The same view was adopted in the case of Mohd. Hashim, Appellant Vs. State, 2000 CRI.L.J 1510, Pawan Kumar Vs. Delhi Administraton,1987 CCC 585 and Mewa Ram Vs. State 2000 CRI.L.J114.
The fact that the FIR number is mentioned on the aforementioned documents and the statement of PW ASI Rajender that he inserted the FIR No. 7/11 on the aforesaid documents, causes a reasonable doubt in the prosecution story as held in the judgments mention herein above.
Handing Over the seal to the member of the Raiding Party: 23 In the judgment of Ramji Singh V/s State of Haryana 2007 (3) R.C.R. (Criminal) 452, the observations of Hon'ble Punjab and Haryana High Court in Para No. 7 can be reproduced for the sake of the benefit of all:
"The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out".
In Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in para 15 of the judgment in this regard the Hon'ble Supreme Court held as under:
"15............................In these circumstances there is justification in the argument that since the seal as well as the packets remained in the FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.9/12 custody of the same person, there was every possibility of the seized substance being tempered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case."
PW Ct. Subhash, HC Rajender and ASI Rajbir deposed that the seal after use was handed over to Ct. Anil who has not been examined by the prosecution. It is beyond comprehension as to why the seal was handed over to Ct. Anil. While relying upon the judgment of Rajesh Jagdamba Avasthi Vs. State of Goa, (2005)9 SCC 773, in Bijay vs. State ( G.N.C.T. Of Delhi), 2011 VI AD (DELHI)562, Hon,ble Mr. Justice Suresh Kait held in para 34 of the said judgment that:
" after sealing the sample, the seal was not handed over to an independent person, rather he kept with him only, which also creates doubt on the sample whether the samples, were intact and not tempered with."
In the judgment of Noor Aga V/s State of Punjab, 2008 (10) SCR 379 which was a case under NDPS Act, the seal was not deposited in malkhana and no explanation was furnished in this regard, the Hon'ble Apex Court held that it was difficult to hold that the sanctity of the recovery was ensured.
Considering the aforementioned propositions of law as settled by the aforementioned judgments it is amply clear that the same has affected the prosecution case and the same cannot be relied upon so as to return the finding of the conviction of the accused.
FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.10/12 24 From the perusal of the oral and the documentary evidence led by the prosecution, I am of the considered view that there are inherent material contradictions on the record which has rendered the case of the prosecution as unbelievable and unworthy of any credence. The rukka Ex. PW5/A is silent as to who carried out the casual search of the accused whereupon the recovery of the alleged article was made. However the evidence led by the prosecution in this regard is contradictory. PW Ct. Subhash stated in his examination in chief that he took the formal search of the accused, however in his cross examination he stated that IO ASI Rajbir Singh searched the accused. On the other hand, ASI Rajbir in his examination in chief stated that Ct. Subhash took the formal search of the accused, however in his cross examination he stated that the casual search of the accused was carried out by Ct. Subhash and Ct. Anil. Therefore, the recovery of the alleged country made pistol, live cartridges and the knife has become doubtful due to the same reasons. There is clear contradiction in the oral and the documentary evidence in this regard. In Satinder Singh Vs. State (NCT of Delhi) 69(1997) DLT577, it was held as under:
"that the oral evidence which is contrary to the documentary evidence ought not to be relied upon. Hence, in my considered opinion, this inordinate delay of almost one year in sending the case property to the FSL has proved fatal to the cause of the prosecution, especially so when there is no explanation has been put forth in this regard. As held by the aforesaid propositions of law I have no hesitation in holding that due to said reason the prosecution case becomes doubtful and consequently falls short of being proved beyond reasonable doubt.
FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.11/12 Hence, in view of the aforementioned evidence on the record especially considering the contradictions in the same I am not inclined to rely upon the case of the prosecution. The prosecution has failed to travel the distance from may to must which is the golder principle of criminal jurisprudence before the accused can be convicted.
25 Therefore, in view of the discussions made herein above and the facts and circumstances of the present case, in my considered opinion, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, accused Sanjay Kumar @ Sanjay Shokeen stands acquitted of the offence under Section 25 Arms Act, 1959 he has been charged with. He be set at liberty forthwith. He be released forthwith if not wanted in any other case. Case property be destroyed after the expiry of the period of the appeal. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (HEM RAJ)
TODAY i.e on 6 December, 2012
th
MM09:WEST:THC
06.12.2012.
.
FIR No. 07/2011 STATE V/s SANJAY KUMAR @ SANJAY SHOKEEN PAGE No.12/12