Delhi District Court
Unknown vs State Of Haryana on 19 September, 2022
IN THE COURT OF SH. RAHUL VERMA,
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI.
FIR No. 277/2019
PS - Sunlight Colony
U/s - 9B(1)(b) Explosive Act 1884 read with Section 286 IPC.
State v. Sudarshan Kumar
JUDGMENT
Part A - The list at a glance A. Serial No. of the Case : 6453/2021 B. Date of Commission of offence : 21.10.2019 C. Date of Institution of Case : 10.09.2021 D. Name of the Complainant : ASI Jai Pal Singh E. Name of Accused : Sudarshan Kumar S/o Late Shri Murli R/o C21, Sidarth Nagar, Hari Nagar, Sunlight Colony, New Delhi.
F. Offence charged of : 286 IPC and Section 9B (1) (b)
The Explosive Act, 1884
G. Plea of the accused : Pleaded not guilty
H. Final Order : Acquitted
I. Judgment reserved on : 16.09.2022
J. Date of judgment : 19.09.2022
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Part B - A brief statement of reasons for the decision (As mandated u/s 355(i) of the Code of Criminal Procedure, 1973.)
1. It is the case of the prosecution that on 21.10.2019, at about 04:45 PM, at C21, Sidharth Nagar, Hari Nagar, Sunlight colony, New Delhi, within the jurisdiction of P.S. Sunlight Colony, accused Sudarshan Kumar was found in possession of 5 KG fire crackers without license and permit for the purpose of transport and sale and and thereby committed an offence punishable u/s 9B (1) (b), Explosive Act 1884 r/w Section 286 IPC.
2. After completion of investigation, charge sheet qua the accused was filed under Section U/s. 9B(1)(b), Explosive Act 1884 read with Section 286 IPC. Documents were furnished to the accused in compliance of Section 207 of Criminal Procedure Code (hereinafter, referred to as 'Cr.P.C.'). On the basis of material on record, charge under Section U/s. 9B(1)(b), Explosive Act 1884 read with Section 286 IPC was framed upon the accused, to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution has examined the following witnesses:
(i) PWHC Jaipal Singh deposed that on 27.10.2019 he alongwith Ct. Satish were on patrolling duty in the area of Budhan Park. At about
04.15 PM, upon receipt of information from a secret informer they went to shop no. C21, Sidarth Nagar and inside the shop they saw that firecrackers were kept there and the shopkeeper/accused was selling the same. On enquiry, he disclosed his name as Sudarshan Kumar S/o Shri Murali. He failed to provide license / permission. Thereafter, they State v. Sudarshan Kumar, FIR No. 277/19 PS Sunlight Colony Page No. 2 of 8 weighed the firecrackers, and seized them. He further deposed that he prepared the seizure memo of the firecrackers Ex. PW1/A, prepared the tehrir Ex. PW1/B and handed over the same to Ct. Satish to get the FIR registered. He also prepared the site plan Ex. PW1/C, arrested the accused vide memo Ex. PW1/D. He informed the grounds of arrest to accused. Accused was released on police bail on furnishing of bail bonds as the offence in question was bailable in nature. Thereafter, the firecrackers ie., case property was deposited in PS Malkhana. He identified the accused as well as the said firecrackers Ex. P2 (Colly).
(ii) PW2 Ct. Satish deposed on the similar lines as of PW2.
(iii) PW3 HC Mahender Singh deposed that on 28.04.2021 the further investigation of the present matter was marked to him. Thereafter from 01.05.2021 lockdown was imposed and on 15.05.2021 he was transferred to PS Sarita Vihar and he handed over the case file to MHCR. He could not identify the accused as he never met him during the course of investigation. This witness was not cross examined despite availing opportunity.
(iv) PW4 ASI Rohitash deposed that in the year 2021 the present file was marked to him for further investigation and thereafter he filed the charge sheet in the court. He could not identify the accused as he had not arrested him nor he met him during the investigation. This witness was duly cross examined by the Ld. Defence counsel for the accused.
4. Vide a separate statement dated 02.05.2022 the accused admitted the State v. Sudarshan Kumar, FIR No. 277/19 PS Sunlight Colony Page No. 3 of 8 genuineness of FIR (without contents) and certificate u/s 65B IEA Ex.PA1.
5. Prosecution evidence was closed vide order dated 28.05.2022.
6. Statement of accused u/s 313 r/w 281 of Cr.P.C was recorded on 28.05.2022 wherein the accused denied the incriminating evidences appearing against him and opted to lead defence evidence. He examined the following witnesses:
(i) DW1 Rachna deposed that on 27.10.2019 she was present inside the shop in question namely "Pari Cosmetic". At about 06.00 06.30 PM, two police officials came and apprehended her husband who was burning firecrackers outside the said abovesaid shop with her daughter. The said police officials also brought one plastic katta containing fire crackers with them. They told them that her husband sell fire crackers in the area and then they took her husband to the PS. She called to her other family members and then they all went to the PS. This witness was duly cross examined by the Ld. APP for the State.
(ii) DW2 Sant Kumar deposed that on 27.10.2019, accused Sudarshan was burning firecrackers ie., fuljari with his daughter in front of their shop of cosmetics. In the meantime, police officials came to the spot and took him to PS. This witness was duly cross examined by the Ld. APP for the State.
7. Subsequently, final arguments from the counsel for accused and Ld. APP for the State were heard.
8. In the present matter, charge was framed against the accused u/s 9B(1) State v. Sudarshan Kumar, FIR No. 277/19 PS Sunlight Colony Page No. 4 of 8
(b) Explosive Act 1884 read with Section 286 IPC. It is alleged by the prosecution that the accused was found in possession of 5 kg. of fire crackers (explosives substance) at Shop no. C21, Sidarth Nagar, New Delhi without license and permit in contravention of Explosives Rules, 2008.
9. Before coming to the evidence led in the present matter, it is essential to test that whether the possession of alleged fireworks by the accused is actually prohibited under The Explosives Act, 1884.
10. Section 9B of the said Act prohibits possession of explosives in contravention of the rules made under section 5 of the Act or in contravention of the conditions under which the license was granted. Rule 7 of The Explosives Rule, 2008 prohibits manufacture, import, export, transport, possess for sale or use an explosive except as authorised or licensed. Further, Rule 9 of the said Explosives Rule, 2008 provides that no license shall be necessary in case where possession of fire works does not exceed 100 Kg for own use and which is not for sale. The relevant portion of the same is reproduced as under:
9. No licence needed in certain cases.-- Notwithstanding anything contained in rule 7, no licence shall be necessary for the following cases, namely :--
(5) possession of fireworks not exceeding one hundred kilogram for own use and not for sale;
11. Bare perusal of aforesaid provisions shows that in order to secure conviction under Section 9B(1)(b), Explosive Act 1884, prosecution was required to prove that the recovered fire crackers were meant for sale and not for own use. In order to prove such allegation, the prosecution examined 04 witnesses. However, perusal of the testimony of prosecution witnesses shows State v. Sudarshan Kumar, FIR No. 277/19 PS Sunlight Colony Page No. 5 of 8 that none of them were able to establish on record that the seized fire crackers were kept by the accused for the purpose of sale. PW2 merely deposed that he alongwith HC Jai pal entered the shop of the accused and found some firecrackers in a plastic sack and some other firecrackers in open and carton box.
12. It appears that the only emphasis of the prosecution version is on recovery of fire crackers without collecting any evidence whatsoever regarding its intended use. Even the alleged recovery of said firecrackers from the shop of the accused appears doubtful in view of the fact that neither any photographs of the shop was taken nor any public witness was joined as recovery witness. The only photographs relied upon by the prosecution are that of the firecrackers itself which does not even remotely indicate the location from where these might have been seized. Further, both PW1 and PW2 admitted the presence of public persons on the spot but deposed that public persons refused to join the investigation and left the spot without giving their details. However, no notice was given to any such public persons. Here, it is pertinent to refer to Section 100(4) Cr.P.C. which casts a duty upon the police to call upon two or more independent public persons of the locality in which the place of search is situated. It is also incumbent on the part of police to make such independent public persons a witness to the search which has to be conducted by the police. However, despite availability of said public persons on the spot, the police has failed to join the independent public persons at the time when the search of accused was made and recovery of stolen article was effected. This leads to an adverse inference against the entire recovery. It must be noted that the recovery, arrest and search before an independent witness imparts authenticity and creditworthiness to the State v. Sudarshan Kumar, FIR No. 277/19 PS Sunlight Colony Page No. 6 of 8 proceedings carried out by the police authorities. In the absence of any independent witness having been joined in the investigation, possibility of false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed in this regard on the judgment of Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, wherein it was observed by Hon'ble High Court of Punjab & Haryana that:
"4. ...It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non−joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
13. Reliance is also placed on the judgment of Pradeep Narayana v. State of Maharashtra, AIR 1995 SC 1930, where it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
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14. Clearly, the omissions/ failure on the part of investigating agency to join independent public witnesses raises serious doubt on the prosecution story.
15. As regards Section 286 IPC for which the accused has been charged with, bare perusal of the said provision shows that to bring home the guilt of offence punishable under 286 IPC, it is essential to prove rashness or negligence on the part of the accused while handling the alleged explosives. However, in the present case from the perusal of the entire evidence led on record, it is apparent that prosecution has not led any evidence to prove rashness or negligence on the part of the accused. None of the police witnesses even deposed to the effect that the accused handled the alleged explosives/firecrackers in rash or negligent manner. In absence of such evidence the accused cannot be held guilty of offence punishable under Section 286 IPC.
16. In view of foregoing discussion, I am of the considered opinion that charges under Section 9B (1)(b) of the Explosive Act 1884 and Section 286 IPC have not been proved against the accused beyond reasonable doubt. Accused Sudarshan Kumar accordingly stands acquitted of the offences punishable under Section 286 IPC & Section 9B (1)(b) of Explosives Act, 1884.
Digitally signed by RAHUL RAHUL VERMA Announced in open VERMA Date: 2022.09.20 17:43:35 +0530 court on 19.09.2022 (RAHUL VERMA) Metropolitan Magistrate07, South East, Saket, New Delhi State v. Sudarshan Kumar, FIR No. 277/19 PS Sunlight Colony Page No. 8 of 8