Delhi District Court
State vs Abid @ Guddu on 26 September, 2014
Author: Ms. Veena Rani
                                           1
     IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN 
   MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI.
           STATE           VERSUS                       Abid @ Guddu
FIR No:196/2011
U/s 25/54/59 Arms Act
P. S. Kalkaji
Date of filing of the charge sheet     :         06−08−2011
Date of reserving order                :         Not reserved.
Date of pronouncement                  :         26−09−2014
                                     JUDGMENT
(a) Serial Number of the case              : 84/5 of 2011
(b) The date of the commission of  : 09−06−2011
    the offence
(c) The name of the complainant    : HC Sunil Gaur
(d) The   name   of   the   accused  :              Abid @ Guddu S/o 
    person,   his   parentage   and                  Riyazuddin, R/o 
    residential address                          B−1139, B−Block, Transit 
                                                 Camp, Govindpuri, New 
                                                           Delhi
(e) The offence complained of              : (i)Section   25/54/59   Arms 
    and Final Orders.                        Act−  Acquitted   vide   the 
                                             present judgment. 
                                               (ii)   U/s   3/181   MV   Act: 
                                               Accused   convicted   for   the 
                                               this   offence   and   sentenced 
                                               to pay fine of Rs.100/−.
                                               (iii)   U/s   103     DP   Act.   : 
                     FIR No. 196/2011, State Vs.  Abid Guddu
                                              Accused   pleaded   guilty   , 
                                              convicted and  sentenced to 
                                              pay   fine   of   Rs.100/−   vide 
                                              separate order sheet. 
                                              (iv)U/s   174   IPC   :Accused 
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                                              pleaded   guilty,   convicted 
                                              and   sentenced   for   the 
                                              period   for   which   he   has 
                                              already   undergone,   vide 
                                              separate order sheets.
(f) The plea of the accused                : Pleaded   not   guilty   to   the 
                                             charges u/s 25/54/59 Arms 
                                             Act. & U/s 3/181 MV Act.
(g) The date of the order                  : 26−09−2014
PROSECUTION CASE:
1. In the present case, the charge sheet was filed on 06−08−2011 alleging therein that on 25−08−
2011, at about 7:30 pm, in front of Shamshan Ghat, Kalkaji, accused Abid @ Guddu was found in
possession of one Katta with two live cartridges in contravention of notification issued by Delhi
Administration for which he committed offence u/s 25/54/59 Arms Act and also found driving the
motorcycle No:DL−7S−AX−2496 without licence and also committed the offence u/s 3/181 MV Act.
Accused Abid @ Guddu was arrested and necessary documents were prepared at the spot. On
completion of investigation, charge−sheet U/s 25 of the Arms Act u/s 3/181 MV Act and also
Kalandara u/s 103 DP Act were filed against the accused.
2. Cognizance of the offence was taken by the Ld. Predecessor of FIR No. 196/2011, State Vs. Abid
Guddu this court vide order dated 18−08−2012 against the accused and copies of charge sheet
supplied to accused.
3. Charge was framed against the accused for an offence U/s 25 of Arms Act on 11−08−2011 to which
accused had pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case had examined as well as 7 witnesses namely PW1 HC
Mukesh Kumar, PW2 HC Suresh Chand, PW3 Ct. Vipin Gyagi, PW4 HC Kailash Chand, PW5 Sh.
V.R. Anand, AD, FSL, Rohini, PW6 Ct. Ravinder Giri and PW7 HC Sunil Gaur.
5. IO/PW7 Sunil Gaur in his chief examination deposed that on 09.06.11 he was posted at AATS,
South East as a Head Constable. On that day at about 4:00 pm he alongwith Constable Ravinder and
Constable Vipin Tyagi left their office for patrolling. At about 6:00 pm they were present at Nehru
Place bus terminal, a secret informer met him and informed him that a person namely Abid @
Guddu who is a BC of PS Govindpuri will came at near Shamshan Ghat, Kalkaji to meet some person
at around 7:00 pm on motorcycle bearing no. 2496 alongwith illegal arms with him. He requested
few public persons to join the investigation but they all refused without disclosing their names and
addresses. At about 6:15 pm they reached near Shamshan Ghat, Kalkaji and started waiting
alongwith secret informer. At around 7:30 pm they saw a person coming from Nehru Place side on a
motorcycle bearing no. DL7SAX 2496 and he stopped his motorcycle in front of Shamshan Ghat,
Kalkaji. Secret informer pointed out towards that person as Abid @ Guddu and therefore secret
informer left the FIR No. 196/2011, State Vs. Abid Guddu spot. Accused got down from his
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motorcycle and started waiting. PW7 further deposed that they all managed to apprehend accused
Abid. During enquiry he revealed his name as Abid @ Guddu. Formal search of accused was
conducted and desi katta was recovered from the right side dub of his pant. Katta was found to be
loaded with one live cartridge. A live cartridge was also recovered from the left side pocket of the
pant of the accused. It is deposed by PW7 that he prepared sketch of the katta and cartridges vide
Ex. PW 3/E bearing my signatures at point C and kept the katta and the cartridges in a white cloth
and prepared a pulanda of the same and duly sealed it with the seal of SG vide seizure memo Ex. PW
3/A bearing his signatures at point C. FSL form was filled up. Seal after use was handed over to
Constable Vipin. PW7 further deposed that they found a green polythene was hanging on the handle
of motorcycle of the accused. Same was opened and was found containing five mobile phones. A
driving license was also recovered from the pocket of the shirt of the accused in the name of Basim.
The mobile phones, driving license and motorcycle alongwith key and helmet were seized as per
seizure memo Ex. PW 3/B, Ex. PW 3/C and Ex. PW 3/D all bearing his signatures at point C.
IO/PW7 prepared the rukka Ex. PW 7/A bearing his signatures at point B and give it to Constable
Vipin and sent him to PS Kalkaji for registration of FIR. He/IO/PW7 also recorded disclosure
statement vide Ex. PW 6/A bearing his signatures at point B. Accused was arrested and his personal
search was conducted vide Ex. PW 6/B and Ex. PW 6/C, both bearing his signatures at point B. PW7
deposed that he prepared site FIR No. 196/2011, State Vs. Abid Guddu plan Ex. PW 7/B bearing his
signatures at point A, he recorded the statement of the witnesses. Accused was got medically
examined and sent to lock up. Case property was deposited in the malkhana. It is deposed by PW7
that thereafter they went to their office where Constable Vipin also arrived and handed over copy of
FIR and original rukka to him, he also collected FSL result and obtained sanction u/s 39 Arms Actm
prepared the challan and submitted in the Court.
PW7 identified the desi katta, one cloth pulanda with seal impression, one live cartridge and one
used cartridge and same are already Ex. P1 to P4. PW7 also identified five mobile phones of make
one Nokia, two GFIVE, one MAXX and one Samsung which are Ex. P5 to P9.
During the his cross examination, by Sh. Vinay Kumar Verma, Counsel for the accused from Legal
Aid, PW7 stated that Secret informer gave him secret information at Nehru Place terminal. From
there he alongwith his staff directly proceeded towards the spot alongwith secret informer. He
shared the secret information to his Senior officials. They did not offer their personal search to the
accused before taking his personal search. PW7 stated that he does not remember what clothes were
worn by the accused at that time. Seal after use was handed over to Constable Vipin Tyagi by the
him and he received back the seal on the next day. Constable Vipin Tyagi left the spot for
registration of FIR at about 9:00 pm on TSR. He had prepared site plan, seizure memo of desi katta,
mobile phone, motorcycle and DL, sketch of katta, disclosure statement at the spot alongwith rukka
at the FIR No. 196/2011, State Vs. Abid Guddu spot. No tampering was done by the me on the said
documents. The FIR number on the documents were mentioned after the FIR was got registered. All
writing work was done under street light. PW7 admitted that existence of street light is not
mentioned in the site plan. PW7 denied that accused was apprehended from his house at Noida or
that katta, cartridge and mobile phones were not recovered from the possession of the accused or
that accused has been falsely implicated in this case at the behest of his senior Officials.
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6. PW3 & 6 were also the member of raiding party and they deposed on the same line & statement of
PW7.
7. PW1 was the duty officer on 09−06−2011, who recorded the present case FIR Ex.PW1/A on the
basis of rukka Ex.PW1/B.
8. PW2 was the MHC(M), posted at PS Kalkaji on 9−6−2011 to whom HC Sunil Gaud deposited one
sealed pullinda sealed with SG and FSL Report and 5 mobiles phone and one Motorcycle
No:DL7SAX2496. PW2 produced the copy of register no:19 whichis Ex.PW2/A (OSR). PW2 further
deposed that sealed pullinda was sent to FSL through HC Kailash on 21−6−2011 and the report and
case property was received back in Malkhana on 2−8−2011 through Ct. Ghanshyam and he made the
entries in register No:19 (OSR).
9. PW4 HC Kailash Chand deposed that on 21−06−2011, IO HC Sunil Gaur gave him documents and
sent him to PS Kalkaji and to collected a pullanda from there and deposit the same at FSL and he
went to the PS Kalkaji and collected a pullanda from there,sealed with the seal of SG and deposited
the same at FSL Rohini and handed over the receipt to FIR No. 196/2011, State Vs. Abid Guddu the
IO. PW4 deposed that pullanda was not tampered till the same remained in his possession.
10. PW5 is Sh. V.R. Anand, Assistant Director−Ballistic, FSL, Rohini proved the FSL report which is
Ex.PW5/A. PW5 deposed that country made pistol was in working order and test fire conducted
successfully.
11. Thereafter, the statement of the accused was recorded on 26−09−2014 and accused chosen not to
lead defence evidence. It is stated by accused that he has been falsely implicated in the present case
and the witnesses deposed against him are interested witnesses and he has nothing to do with the
present case and nothing has been recovered from his possession.
12. I have heard the Ld. APP for State and Ld. Defence counsel and perused the material available on
record.
13. It is argued by the Ld. APP for State that the case has been duly proved against the accused
person beyond any reasonable doubt and he should be convicted. He argued that competent
authority had given its Sanction for prosecution of accused person by applying its mind to the facts
of the case and after considering relevant material. He had argued that the prosecution had been
able to successfully prove that accused was in possession of illegal Arms and accused was also found
in possession of two mobiles without having any ownership and therefore, he is liable to be held
guilty for committing offence U/s 25 of Arms Act and u/s 3/181 of MV Act.
14. After going through the complete evidence and records of this case I am of the view that the
accused deserves acquittal U/S 25/54/59 FIR No. 196/2011, State Vs. Abid Guddu of Arms Act, in
this case on the following grounds.
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(a) No independent public witnesses have been joined at the time of recovery or during investigation
despite their easy availability as the place where the alleged recovery had been affected was a public
place. It is argued that merely a general allegation /averment that IO had asked few public persons
to join the investigation but they had refused to participate and left the place by telling their genuine
problem was not sufficient to evade the mandatory requirement of law of joining public witnesses. It
is submitted that no written notice was given to those persons who had refused to join the
investigation nor their particulars were recorded and the bald allegations of witnesses and IO in this
regard were of no legal consequence.
(b) The mentioning of FIR Number on sketch memos and seizure memos clearly shows that these
memos were prepared after registration of FIR and not prior to registration of FIR as alleged in the
prosecution story. This fact clearly shows that all the proceeding have been done at the police station
and not at the spot as alleged by PWs which proves that PWs were not stating the truth before the
court.
(c) Even the notification, the violation of which had been alleged in the present case was also never
placed on judicial record. Hence, all these short falls appearing in the story of prosecution are
sufficient enough to cast a dent in the story of prosecution and its authenticity and genuineness and
casts a serious shadow of doubt and suspicion over the same.
(D) There is contradiction between the deposition made by PW1 and FIR No. 196/2011, State Vs.
Abid Guddu PW2. PW1 during his examination deposed that On the formal search of accused one
English made pistol was recovered from his right side dub of the pant whereas the HC Ombir Singh,
who is the IO of the case, deposed that accused tried to pull out one English made pistol from his left
side dub ot his pant. PW1 deposed that they reached at the spot at about 7 p.m, whereas PW2
deposed that they reached at the spot at 6:20 p.m.
15. Reliance has also been placed by the learned Defence Counsel on the ratio of the case titled as
"Abdul Sattar & Anr. Vs. State", reported in 2009 (4) JCC 3179 (Del.) wherein it has been held by
our own Hon'ble High Court of Delhi that in the absence of a notification being placed or proved on
record by the prosecution, it would be difficult to conclude that the possession of the recovered
weapon from an accused was actuallyin contravention of Section 5 of the Arms Act, which is one of
the main ingredients for offence punishable under Section 25 of the Arms Act.
The prosecution however, has neither placed nor proved any such Notification. Thus, in the absence
of any evidence to that effect, it is difficult to conclude that the possession of above recovered knife
and dagger by the respective appellants was in contravention of Section 5 of the Arms Act, which is
one of the main ingredients for offence punishable under Section 25 of Arms Act.
As per Judgment of Manpreet Singh vs. State 2004 (1) JCC 1 it was held that:
FIR No. 196/2011, State Vs. Abid Guddu "seal after sealing not handed over to the independent
witness creates doubts and also not joining the independent witness creates doubt and violation of
Section 100 (4) Cr.P.C."
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16. In case titled as State of Haryana Vs. Ram Singh 2002 SCC (CRL) 351 Hon'ble Apex court had
observed that when disclosure, discoveries and arrest are made in the absence of independent
witness it creates a doubt or suspicion which must go to the benefit to the accused.
That if there are material contradictions in the statements of witn esses and no documentary proof
of DD entry, then the prosecution case i s not free from shadow of the doubts and failed to prove its
case beyond any reasonable doubts then prosecution had failed as held in Satish Kumar vs. State
2013 (JCC) 441.
17. In case titled as Prithivi Pal Singh @ Munna Vs. State of Delhi 2000 Law Suit (Delhi) 197 it was
held in Para 6 that: "that the provision of the Code of Criminal Procedure relating to search, seizure
or arrest apply to search, seizure and arrest under the act also to the extent they are not inconsistent
with the provisions of the act. Thus while conducting search and seizure, in addition to the
safeguard provided under Cr.P.C., the safe guard provided under the act are also required to be
followed. It is well settled that failure to comply with the provisions of the Code of Criminal
Procedure in respect of search and seizure and particularly those of sections 100, 102, 103, FIR No.
196/2011, State Vs. Abid Guddu 164 per se does not vitiate the trial under the Act. But it has to be
borne in mind that conducting a search and seizure in violation of statutory safeguardwould be
violative of the reasonable fair and just procedure...................."
18. In Menka Gandhi Vs. Union of India it was held that when the statue itself provides for a
reasonable, fair and just procedure, it must be honoured. Thus an accused has right to reasonable
fair and just procedure. The statutory provisions embodied in section 41 to 55 and\ section 57 of the
Act and Sections 100, 102, 103 and 165 of the Cr.P.C. Fair and reasonable, fair and just proper.
19. Section 43 of the act read alongwith sub section 4 of the Section 100 Cr.P.C. contemplates that
search should as far as practicable be made in presence of two independent and respectable
witnesses of the locality and if the designated officers fail to do so, the onus would be on the
prosecution to establish that the association of such witnesses was not possible on the facts and
circumstances of a particular case." "............. thus, the statutory desirability in the matter of search
and seizure is that there should be two or more independet and respectable witnesses.
20. In the present case, only general allegations were being made that IO had made efforts to join
public witnesses but nothing material had come on record to show the same such as the names of
the persons who were asked to join the proceeding etc. Not only this, but also, no finger prints of
accused persons were FIR No. 196/2011, State Vs. Abid Guddu taken or lifted from the weapons
alleged to have been recovered from their possession so as to link them with the said alleged
possession and recovery.
Though, it is not the case that police witnesses were not material witnesses or on their sole
testimonies accused could not have been convicted but it is well settled that in the absence of any
independent witness, the contradictions in the testimonies though minor in nature should also be
viewed seriously as decided in Kuldeep Singh Vs State of Haryana, 2004(4) RCR 103 wherein it was
held that:− "Recovery effected at a place where independent witness were available but not joined−
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Discrepancies in statement of official witnesses− Discrepancies assume importance when no
independent witness was joined.
21. In Passi @ Parkash V State of Haryana, 2001(1) RCR 435 wherein it was held that:−
"Discrepancies in statement of witnesses assumed importance due to non joining with independent
witness. Had an independent witness been joined these discrepancies would not have affected the
prosecution.
22. In Pawan Kumar Vs Delhi Admn. 1987 CC. Cases 585(HC) wherein it has been held that:− In the
normal circumstances, the FIR number should not find mention on the recovery memo or the sketch
plan which had come into existence before the registration of the case. However, from the perusal of
the recovery memo, I find that the FIR is mentioned whereas the sketch FIR No. 196/2011, State Vs.
Abid Guddu plan does not show the number of FIR. It is not explained as to how and under what
circumstances, the recovery memo came to bear the FIR number which had already come into
existence before the registration of the case. These are few of the circumstances which created a
doubt about the genuineness of the weapon of offence alleged to have been recovered from the
accused. If in the recovery memo description of the weapon shows defers or did not find mentioned
in the sketch plan, it creates a doubt about the identify of the weapon from the accused. It was also
held that where the IO does not make any attempt to make any public witness despite the presence
of large number of persons on the spot and no plausible explanation comes from the side of
prosecution in forth coming for non joining of independent witnesses in a case of serious nature like
25 Arms Act, it creates a doubt on the arrest and the recovery of the weapon from the person of the
accused.
23. In view of above mentioned judgments, I am of the opinion that merely on the basis of routine
identical statements of police witnesses, it would not be safe to hold accused guilty as there are
above mentioned shortcomings in the case of prosecution which cast a doubt and makes the accused
entitled for every benefit of doubt, hence I am of the opinion that prosecution has failed to prove its
case beyond reasonable doubt against the accused and accused namely Abid @ Guddu stands
acquitted for the offence U/s 25 of Arms Act.
24. In respect of offence u/s 3/181 MV Act, during the course of final argument, accused Abid @
Guddu admitted before this court that he FIR No. 196/2011, State Vs. Abid Guddu was driving the
motorcycle without having any driving licence, as alleged by the IO/PW7 in his chief examination.
Therefore, on the admission of accused, he is convicted u/s 3/181 of MV Act and he is sentenced to
pay a fine of Rs.100/− in default simple imprisonment for one day. File paid by accused.
25. At the request of ld. Counsel for the accused the existing bail bond and surety bond of the
accused is accepted as per the compliance of Section 437(A) of Cr.P.C. File be consigned to record
room.
ANNOUNCED IN THE OPEN COURT                          ( VEENA RANI)
TODAY ON 26−09−2014                              CMM/SE/SAKET COURT/ND.
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                      FIR No. 196/2011, State Vs.  Abid Guddu
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