Delhi District Court
State vs . Sanjeev Kumar on 4 July, 2022
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE-05, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 79/2013
PS Raja Garden Metro
State Vs. Sanjeev Kumar
CNR No. DLWT02-004470-2016
Cr. Case No. 69943/2016
JUDGMENT
(a) Sr. No. of the case 69943/2016
(b) Date of offence 02.11.2013
(c) Complainant / informant ASI Paras Ram
(d) Accused persons Sanjeev Kumar,
S/o Sh. Ganga Sharan,
R/o House No. E-52, Gali No. 4, Third Floor, Jagjit Nagar, Usmanpur, Delhi.
(e) Offences Under Sections 25 Arms Act & 20 of NDPS Act
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquittal (h) Date of institution 08.01.2016 (i) Date of judgment 04.07.2022
1. The case of the prosecution is as follow: -
Digitally signed by SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.04
15:19:32 +0530
FIR No. 79/13 State Vs. Sanjeev Kumar 1 of 23
PS Raja Garden Metro
That on 02.11.2013 at about 2:00 P.M. at Checking Point, North Side, X-BIS Machine, Uttam Nagar East Metro Station, Delhi the accused was found in possession of 08 rounds of live cartridges without any permit / license, along with a small packet of dry flowers of cannabis, i.e. gaanja as described in seizure memo Mark A. Therefore, FIR u/s 25 Arms Act & 20 NDPS Act 1985 was registered against accused. Investigation was undertaken. After investigation, chargesheet was filed against accused for commission of offence u/s 25 Arms Act & 20 NDPS Act 1985.
2. On the basis of chargesheet, compliance of section 207 Cr.P.C. was completed and charge for the offence punishable under Section 25 Arms Act 1959 & 20 NDPS Act 1985 was framed against accused Sanjeev Kumar on 22.05.2017 to which accused pleaded not guilty and claimed trial.
3. The prosecution has examined total 10 witnesses. The witness number 8, PW ASI Devender could not be examined as he expired during the trial. The genuineness of Ballistics report bearing No. 2014/C-686 dated 17.02.2014 prepared by Dr. Lingaraj Sahoo Ex.AD-1, FSL report No. 2014/F-0687 dated 26.02.2014 prepared by Dr. N.P. Vaghmare Ex.AD-2, Sanction u/s 39 Arms Act dated 07.10.2015 Ex.AD-3 were admitted by the accused under Section 294 CrPC.
Digitally signed by SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.04
15:19:44 +0530
FIR No. 79/13 State Vs. Sanjeev Kumar 2 of 23
PS Raja Garden Metro
4. The testimony of rest the prosecution witnesses are as follows: -
PW-1 ASI Paras Ram: He deposed that on 02.11.2013, he was posted at CISF Unit, DMRC, Shastri Park Uttam Nagar East Metro Station.
His duty hours were 2:00 P.M. to 10:00 P.M. On that day at about 2:00 P.M. HC Rajender Singh from CISF informed him that he had apprehended one person with a bag containing 08 live cartridges and some dry flowers. HC Rajender Singh was deputed on the X-ray machine at that time when the accused put his bag on the same for checking. HC Rajender Singh handed over the accused and the case property and the recovered bag. He checked the same and found 08 live cartridges in it. Thereafter, he informed the control room and took the accused to the Station Controller. The call was forwarded to the DMRC through the Station Controller and the name of accused was revealed as Sanjeev Kumar. The witness then correctly identified the accused who was present in the court. Police reached at the Uttam Nagar East Metro Station, the accused and case Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:19:52 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 3 of 23 PS Raja Garden Metro property were handed over to them. Upon checking, police found 08 live cartridges with some dry flowers, total 19 SIM cards (12 SIM Cards + 7 SIM Cards) of Idea company, one Samsung mobile phone, one charger in the bag. IO along with one Constable came to the spot. IO prepared the site plan at the instance of HC Rajender Singh. IO prepared the sketch of the live cartridges. IO prepared the seizure memo of all recovered articles. IO recorded the disclosure statement of the accused which is exhibit as ExPW1/B. IO seized the bag of accused which is exhibit as Ex.PW1/C and seized the 08 live cartridges which is exhibit as Ex.PW1/D. IO seized the dry flowers Ex.PW1/E. He gave the written complaint to the SHO PS R.G. Metro regarding the same exhibit as Ex.PW/1F. IO arrested the accused and conducted personal search of accused. IO filled the FSL form and sealed with the seal of "DS". Case property was shown to the said witness and he correctly identified the same which is exhibited as Ex.P1, Ex.P2 and Ex.P3.
During cross examination by Ld. APP
Digitally signed by
SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.04
15:20:04 +0530
FIR No. 79/13 State Vs. Sanjeev Kumar 4 of 23
PS Raja Garden Metro
for the State PW1 admitted that that they had also found one Samsung Galaxy Tab from the bag of accused. He admitted that he was shift Incharge from 2:00 P.M. to 10:00 P.M. He admitted that HC Rajender Prashad was on duty on X-BIS machine from 2:00 P.M. to 10:00 P.M. He admitted that ASI Devender alongwith Const. Vijay Pal reached the spot at around 2:55 P.M. He admitted that seal after use was handed over to Const. Vijay Pal. He admitted that the word "Reebok" was written on the bag. He admitted that one charger, one Bank passbook, 14 photos of accused, 12 SIM cards of idea and 07 packets of SIM cards were recovered from the bag which accused was carrying. He admitted that ASI Devender had sent Const. Vijay Pal to PS R.G. Metro for registration of FIR. He admitted that Const. Vijay Pal returned back and handed over copy of FIR and other documents to IO. He admitted that IO recorded his statement.
During cross examination by Ld. Counsel for accused PW1 deposed that he is 10th passed. The incident happened on Uttam Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:20:13 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 5 of 23 PS Raja Garden Metro Nagar East Metro Station. He was present at South side when he received a call from HC Rajender. There were dry flowers in the bag. On seeing the cartridges, he found that it was live. He admitted that entire metro station was covered with the CCTV camera. He does not know whether there was record of the recording at X-BIS machine. He denied the suggestion that that due to the abovesaid reason he did not file the recordings. He did not give the CCTV footage of the place where the X-BIS machine was installed. Vol. Even IO did not ask him for the same. 08 cartridges which were recovered from accused were live cartridges. He denied the suggestion that he had not placed the CCTV footage on record as the bag was checked at the place where no CCTV cameras were installed, and nothing was recovered from the bag. He denied the suggestion that the case property is planted upon accused in order to implicate him in this false case.
PW-2 ASI Ramesh Kumar. He deposed that on 02.11.2013 he was posted at PS Raja Garden Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:20:22 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 6 of 23 PS Raja Garden Metro Metro as Duty Officer who registered the present FIR on the basis of rukka sent by ASI Devender through Const. Vijay Pal at around 5:45 P.M. PW-3 Retd. HC Rajender Prasad: He deposed that on 02.11.2013, he was serving as HC in CISF and was deputed at Uttam Nagar East Metro Station check in point North side. His duty hours were 02.00 PM to 10.00 PM. He was deputed at the X-Ray baggage checking system. On the said date at around 02.00 PM, while checking the baggage, he came across one bag and he saw the images of some bullets in the bag. He inquired about the person who was carrying the said bag and one person whose name was disclosed as Sanjeev Kumar claimed the bag. The said bag was found containing 08 live cartridges on which RF7.65 MM was written, dried flowers in a packet (later on found to be weighing around 5.1 gram) and 19 SIM cards of Idea Cellular. He apprehended the accused and immediately informed the shift In- charge ASI Paras Ram. ASI Paras Ram further Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:20:30 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 7 of 23 PS Raja Garden Metro communicated about the incident in Metro Control Room and Senior Officer of the department. The accused was also brought to the Station Control Room. The police officials were also informed. ASI Devender Singh came and recorded the statement of ASI Paras Ram. Thereafter, present FIR came to be registered. During investigation, the IO prepared the sketch of the live cartridges. The police officials seized the aforesaid bag. The IO also seized the recovered live cartridges. The plastic packet containing the dried flower was also seized. ASI Paras Ram had also made efforts to join the public persons in the investigation but, none of them agreed and left the spot citing their personal reasons. The accused could not give any satisfactory explanation regarding the possession of the aforesaid property in his bag. The accused was arrested by the IO vide arrest memo vide seizure memo Ex.PW1/G. The accused was also personally searched and, in this regard, a personal search memo was prepared which is Ex.PW1/H. After completion of the proceedings at the spot including Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:20:38 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 8 of 23 PS Raja Garden Metro recording of statement of witnesses, the IO relieved him from the investigation. He then correctly identified the case property which are exhibited as Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.P5.
During cross examination by Ld. Counsel for accused, PW3 deposed that he had also gone to the Station Control Room alongwith ASI Paras Ram and the accused. The sketch of the cartridges was prepared in his presence. He came to know about the weight of the dried flowers in the control room. He cannot tell whether the weight machine was available in the control room already or the same was brought from outside. The weight machine was available in the control room at the time, the flowers were weighed. He had seen the weighing machine. The said machine was small in size. He remained in the control room for about half an hour. He does not remember who took his place at the baggage scanner after he went to the control room. Vol. There are three officials present at the baggage counter and the scanning is looked with a rotation of half an hour by each Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:20:45 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 9 of 23 PS Raja Garden Metro official. Not every image of the baggage scanner is saved but the images which may be necessary are saved. The image of the present case articles captured in the X-Ray scanner machine was saved. The said image was not asked by the IO from him. Vol. The same might have been requested from the Shift In- charge. The X-Ray Baggage Scanning Counter is under the surveillance of the CCTV Cameras. The CCTV footage with regard to the present case was not asked by the IO from him. Vol. The same is available with the DMRC Station Control Room. He does not know whether the CCTV footage is the part of the record or not. He denied the suggestion that that nothing was recovered from the possession of the accused as alleged by the prosecution.
PW-4 Const. Deepak Kumar: He deposed that in the year 2014 at the request of IO he had collected the sealed case property from MHC(M) for depositing the same at FSL Rohini. He had collected the case property duly sealed with the seal of DS and deposited the same at Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:20:53 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 10 of 23 PS Raja Garden Metro FSL Rohini vide RC No. 3/21/14. Case property was not tampered with till remain in his possession.
PW-5 Retd. SI Shiv Kumar: He deposed that on 14.09.2015, he was psted at PS Raja Garden Metro as SI and during investigation he had collected FSL report and thereafter they added Section 20 of NDPS Act in the FIR and thereafter, he took sanction u/s 39 Arms Act from the concerned DCP and same was placed on record by him. Thereafter, he prepared chargesheet and submitted the same before the Court.
PW-6 HC Vijay Pal: He deposed that on 02.11.2013, he was posted at PS Raja Garden Metro as Const. On that day, DD No. 12A was marked to ASI Devender Singh for investigation. Thereafter, he alongwith ASI Devender Singh reached at East Uttam Nagar Metro Station where they met one ASI Paras Ram from CISF who produced one Sanjeev Kumar and told that 08 live cartridges and some dry flowers were Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:00 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 11 of 23 PS Raja Garden Metro recovered from accused Sanjeev Kumar and further he had stated that when he put his bag in X-ray machine for checking, 08 live cartridges alongwith some dry flowers were found in the bag. A written complaint was given by ASI Paras Ram. Thereafter, IO put the 08 live cartridges on one plain paper and prepared sketch of same which is Ex.PW1/A. The dry flowers which were recovered from accused was weighed and they were found of 5.1 gram. IO measured the live cartridges and thereafter, put the same in one white cloth and sealed the same with the seal of "DS". Thereafter, IO seized the case property i.e. 08 live cartridges vide seizure memo Ex.PW1/D. IO also seized the bag which was recovered from accused vide seizure memo Ex.PW1/C. After that ASI Devender Singh put the dry flowers in one envelope and sealed the same with the seal of "DS" and thereafter, the said case property was seized vide seizure memo Ex.PW1/E. Thereafter, IO made an endorsement on the rukka and handed over same to him for registration of FIR. Accordingly, he left the spot and went to PS Raja Garden Metro for Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:08 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 12 of 23 PS Raja Garden Metro registration of FIR. After getting FIR registered, he returned back to spot and handed over the copy of FIR and original rukka to ASI Devender Singh. Thereafter, accused was arrested vide arrest memo Ex.PW1/G. Personal search of accused also got conducted vide personal search memo Ex.PW1/H. During cross examination by Ld. Counsel for accused PW6 admitted that the entire investigation was conducted in his presence. The weighing machine was called to weight the dry flowers and the same was brought by ASI Devender. He cannot tell the description of said weighing machine. He had seen the live cartridges. He had gone to the spot along with ASI Devender. He does not know whether ASI Devender Singh had asked the CISF staff to take photographs of the case property or not. He also does not know whether ASI Devender Singh had asked for the CCTV footage of the place of incident or not. He do not remember whether the bag was opened or it was already opened at the time when we reached at the spot. The bag was not put in x-ray machine in his presence. He Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:16 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 13 of 23 PS Raja Garden Metro admitted that the case property was not recovered in his presence. Vol. It has already been recovered from accused Sanjeev Kumar by CISF staff. He does not remember what was recovered from personal search of accused due to lapse of time. He does not know whether the Metro travelling card or token for travelling was seized from accused or not. IO had asked some passersby to join the investigation, but none agreed.
PW-7 ASI Ashwani Kumar: He deposed that on 02.11.2013 he was posted at PS Raja Garden Metro as MHC(M) and on that day he had deposited 02 sealed pulindas duly sealed with the seal of DS in the malkhana which was given by ASI Devender. On 28.01.2014 the said 02 pulindas were sent to FSL for examination vide RC No. 2/21/14 and 3/21/14 through Const. Deepak Kumar.
5. After completion of prosecution evidence, PE was closed. Thereafter, statement of accused person was recorded under Section 313 CrPC and accused submitted that he was falsely implicated. This Court Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:24 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 14 of 23 PS Raja Garden Metro has carefully perused the case record and have heard arguments advanced by Learned APP for the State as well as by Learned Defence Counsel. Ld. APP for the State submitted that prosecution has been able to prove the case against the accused beyond reasonable doubt as recovery of case property has been effected from the accused. Per contra, Ld. Defence Counsel submitted that prosecution has been miserably failed to prove guilt against the accused as no independent witness was cited and seizure memo, sketch memo and other documents are all fabrication as the same were prepared before the registration of FIR which creates doubt regarding sanctity of recovery.
ANALYSIS AND FINDING
6. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence which inspires confidence into the story of the prosecution. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot drive any benefit, whatsoever, from the weakness, if any, in the defense of the accused. The burden of proof of the version of the prosecution in a Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:31 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 15 of 23 PS Raja Garden Metro criminal trial throughout the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
Absence of Independent witnesses
7. At the very outset, it is pertinent to mention here that in the case in hand, the place of alleged incident is a metro station and at the time of alleged incident i.e., at or around 2:00 P.M., the presence of public persons is admitted as PW-3 HC Rajender Prasad, who is a recovery witnesses, has categorically stated that PW-1 ASI Paras Ram had requested public persons to join the recovery proceedings but none of them agreed and left the place without disclosing their name and address.. It is also clear from testimony of above witness that none of them had made any efforts so as to join or note down name and address of public person present there, which clearly shows that there is complete lack of any genuine and sincere effort on the part of police officials to join public witness in the proceedings. It is well settled that the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non-availability or unwillingness of public person to join as a witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. At least in the facts and circumstances of the case, in my opinion, Police officials / IO could well Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:39 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 16 of 23 PS Raja Garden Metro have served the passers-by / public persons with notice in writing to join the police proceedings. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. Further, there is nothing on record to show that recovery witnesses / police officials had served any notice under Section 160 CrPC upon the persons who refused to join the investigation Same has not been done in the present case. Joining of independent witnesses would have given credibility to the recovery proceeding. Therefore, non-joining of independent witness casts a doubt on the fairness of the investigation.
8. At this juncture, it would be pertinent to refer to some case laws.
In a case law reported as "Anoop Joshi Vs. State", 1992(2) C.C. Cases 314(HC), Hon'ble High Court of Delhi has observed as under:
"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 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 Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:47 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 17 of 23 PS Raja Garden Metro the rigors 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."
9. In the facts and circumstances of the present case also it is crystal clear that there was complete lack of any sincere and genuine efforts to join any public witnesses before starting initial investigation of the present case and it creates a very serious doubt over the prosecution version. Joining of independent witness before recovery would have given sanctity to the recovery proceeding. Hence the benefit of doubt owing to such situation has to be given to the accused.
Other infirmities in the prosecution case
10. The PW-1, who is the complainant in the present case, has categorically deposed that all the documents namely disclosure statement of the accused ExPW1/B, seizure memo of the bag of accused Ex.PW1/C, seized 08 live cartridges Ex.PW1/D, seized dry flowers Ex.PW1/E were all prepared, and then the present FIR was registered, however, miraculously, the said documents contains the details of FIR but none of them finds any mention of DD entry on the basis of which the FIR was registered. It is a surprising fact that as to how the FIR number finds mention at the top of seizure memos of case property when the FIR SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:21:55 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 18 of 23 PS Raja Garden Metro was not registered at that time. Even as per the version of prosecution itself no FIR was registered at the time of preparation of above seizure memo, the same is corroborated by the testimony of PW-1 and PW-6. It is also relevant to note that seizure memo did not contain the DD entry number, no explanation, whatsoever, has been offered by the prosecution as to absence of DD entry. Further, the prosecution then examines PW-3 HC Rajender Prasad, who then deposes that the IO first registered the FIR and then prepared all the abovesaid documents. It appears that an attempt was made to bring the story of prosecution in order, but the prosecution examined PW-6 HC Vijay Pal, who then categorically deposed that the IO ASI Devender first prepared the above said documents and then handed over the rukka to PW-6 who then got the FIR registered.
11. The conduct of recovery witness and IO in not mentioning the DD number on the seizure memo creates some doubt regarding genuineness of recovery proceedings. No explanation of any kind, whatsoever, has been given on this point as to why any contemporaneous entry was not mentioned on seizure memo of the case property as it was prepared before the registration of FIR. Contemporaneous entry gives sanctity to a document. Hence, in absence of contemporaneous entry regarding recovery of case property, the planting of the same cannot be ruled out.
Digitally signed by SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.04
15:22:03 +0530
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PS Raja Garden Metro
12. The same leads to only an inference that either the said document was prepared later or that the FIR had been registered earlier in point of time. In other words, mentioning of FIR number on seizure memo Ex.PW1/C was not contemporaneous with the preparation of seizure memo. In both the aforesaid cases, a dent is created, and unexplained gaps are left in the prosecution story, the benefit of which must accrue to the accused. It is also relevant to note that Departure entry (DD entry) regarding departure of recovery witnesses to the place of recovery was also neither produced nor proved by prosecution.
Accordingly, the testimony of PW-1, PW-3 and PW-6, when taken as a whole, does not inspire confidence into the version of the prosecution, and version of recovery as stated by the above said PWs appears to be inconsistent. Therefore, this inconsistency in the testimony of above PWs raises a suspicion in the version of the prosecution regarding the fact of recovery, the benefit of which has to go to the accused person.
Absence of available credible Evidence
13. It has been categorically deposed in his cross examination by the PW1 ASI Paras Ram, who is the complainant as well as shift incharge at the relevant time, that alleged place of incident is a metro station and the entire metro station is covered with the CCTV camera, however he stated that no CCTV footage was handed over to the IO as the request for the Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:22:14 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 20 of 23 PS Raja Garden Metro same was not made by the IO. PW-3 Rajender Prasad, who was deputed at the X-Ray baggage checking system at the time of alleged incident, deposed during his cross examination in clear terms that the image of the present case articles was saved but the IO did not ask for the same. He too deposed that the alleged place of incident is under surveillance of CCTV cameras, but the CCTV footage was not requested by the IO, even though the same was available with the DMRC station control room.
14. The fact that the IO did not secure the CCTV footage of the alleged incident, and the fact that the IO did not even bother to procure the image of case articles/property which was saved in the X-Ray scanner machine as alleged by PW-3, shows that evidence which could have brought some confidence in the case of prosecution have not been collected. There is nothing on record which could have shown the efforts of the IO in procuring the above discussed evidences. No plausible explanation has been offered by the prosecution as to why the said evidences were not collected. It clearly puts a big gap in the whole prosecution story and raises serious suspicion about the case of the prosecution, the benefit of which has to be given to the benefit of accused.
CONCLUSION
15. The facts that no independent witness was cited or examined, the appearance of FIR number and case particulars on the seizure memos, the absence of DD number on the seizure memos has not been explained, and Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.07.04 15:22:23 +0530 FIR No. 79/13 State Vs. Sanjeev Kumar 21 of 23 PS Raja Garden Metro the absence of available credible evidences i.e. CCTV footages alongwith the saved X-Ray Image, goes on to show serious lapses and inconsistencies which, when kept in juxtaposition to each other, cast a cloud of serious suspicion over the prosecution version. In view of the aforesaid, the possibility of false implication of the accused in the present case cannot be ruled out.
16. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities, but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
17. Taking note of evidence on record, this Court is of view that prosecution has not been able to discharge the burden to such an extent that presumption of innocence weighing in favour of accused stands displaced. In light of above discussion, it can be safely said that prosecution has remain unsuccessful in proving guilt of accused beyond reasonable doubt. Therefore, benefit of doubt is hereby given to accused and accused Sanjeev Kumar is hereby acquitted for alleged commission of offence under Section 25 of Arms Act 1959 and Section 20 of NDPS Act 1985.
Digitally signed by SHUBHAM SHUBHAM DEVADIYA
DEVADIYA Date: 2022.07.04
15:22:30 +0530
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PS Raja Garden Metro
18. Case property be confiscated to the State.
19. File be consigned to record room after due compliance.
Digitally signed by SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2022.07.04
15:22:37 +0530
Announced in open Court (SHUBHAM DEVADIYA)
on 04th day of July, 2022 Metropolitan Magistrate
West-05, Delhi
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PS Raja Garden Metro