IN THE COURT OF DR. [ENTITY], ADDITIONAL SESSIONS JUDGE-02, EAST, KARKARDOOMA, DELHI [CASE NUMBER] Date of Institution :16.09.2011 Date of Arguments :05.01.2012 Date of Order :13.01.2012 Shri [ENTITY] Appellant Versus The State of NCT Delhi Respondent ORDER
This order will dispose of an appeal against the judgment dated 15.11.10 and order on sentence dated 23.11.10 passed by Ms. [ENTITY], Ld. A.C.M.M.(I), East District, Karkardooma Courts, Delhi vide which the accused was held guilty and convicted for the offence punishable u/[SECTION] [ACT] and order on sentence whereby the accused/convict was sentenced to undergo rigorous imprisonment for a period of 1 year and also to pay fine of Rs.1,000/- for the offence punishable u/[SECTION] [ACT] in default of payment he shall further undergo SI for one month.
2. I have heard arguments of Ld. Counsels for appellant and Ld. Additional Public Prosecutor for the State and perused the file and Trial Court Record.
3. The facts in brief which are necessary for disposal of this appeal are that accused [ENTITY] was found in possession of one countrymade loaded pistol of 0.12 bore and one live cartridge of 0.12 bore without any valid license or permit in contravention of [SECTION] of [ACT] on 15.11.2005 at about 09:05 p.m. at B Platform, ISBT Anand Vihar, Delhi. After investigation of the case police filed a charge sheet against the accused for his trial for the offences punishable u/[SECTION] [ACT]. Charge for the said offence was framed and read over to accused to which he pleaded not guilty and claimed trial. In the statement recorded u/[SECTION] [ACT] the accused pleaded that he was at the ticket counter at ISBT, Anand Vihar alongwith his friend to get ticket for his friend for the direct bus from Delhi to village Massi, Uttrakhand. When he was about the receive the ticket, one police official took away four tickets and he was not left with any ticket. When he protested, that led to an altercation with the police and thereafter, he was taken to police [ENTITY] where he was falsely implicated in the present case. After considering the evidence on record, Ld. M.M. vide his impugned judgment and order on sentence, convicted and sentenced the accused to under go rigorous imprisonment and to pay a fine as per details mentioned above. Having aggrieved of that judgment and order on sentence, the convict/accused filed present appeal.
4. The judgment and order of Ld. M.M. has been assailed on the grounds inter-alia that Ld. Trial Court did not consider the plea of the appellant and that has resulted into miscarriage of justice. There were many contradictions and the judgment suffers from many legal infirmities.
5. In support of his arguments Ld. Counsel for appellant relied on a case Mohinder Singh and anr. Vs. State of Haryana and [ENTITY] Vs. State of Haryana, 1996(4) Crimes 11 (SC). It was held by Supreme Court that:
"The other appeal filed by [ENTITY] against his conviction under [SECTION] of the [ACT] read with [SECTION] of [ACT] for unlawful possession of the revolver has got to be allowed for the simple reason that the prosecution did not prove that sanction as required under [SECTION] thereof was accorded for prosecuting him for the above offence."
6. Ld. Counsel for appellant further relied on a case [PRECEDENT]. It was held by the Apex Court that:
"It appears that the trial Court and the High Court failed to notice the above circumstances which throw considerable doubt on the prosecution case against the appellant. We are not at all satisfied that the evidence led on behalf of the prosecution excludes reasonable doubt in regard to the guilt of the appellant. Since the prosecution case against the appellant cannot be said to be free from reasonable doubt, we must acquit the appellant of the offence charged against him."
7. Ld. Counsel for appellant further relied on a case [PRECEDENT]. It was held by Delhi High Court that:
"Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart at least the I.O. should have made an earnest effort to join the independent witness. No action appears to have been made and this, by itself, is a circumstance that creat doubt on the arrest or the recovery of the knife from the person of the accused."
8. Ld. Counsel for appellant further relied on a case [PRECEDENT]. It was held by Delhi High Court that:
"7. Besides, what has been recorded by me above, I find myself one with the learned counsel for the appellant that the prosecution version cannot be accepted as Gospel truth and that doubts would legitimately be raised as the Investigating Officer made no effort to join any witness from the public. It is not a case of sudden apprehension and recovery. It is a case where secret information had been received. It is in evidence that there were shops and that consequently persons from the public were available to the investigating Officer at his elbow. And yet he made no effort to join any witness from the public."
9. Ld. Counsel for appellant further relied on a case [PRECEDENT]. It was held by Delhi High Court that:
"The prosecution was under a further duty to prove satisfactorily and beyond reasonable doubt that the article allegedly recovered from the appellant was properly sealed, preserved and thereafter sent to CRCL for analysis and there was no tampering with the recovered article till the time it was taken up for chemical analysis. In this case, the prosecution has miserably failed to prove on record that the article allegedly recovered from the appellant was properly sealed, properly preserved and then sen to the CRCL for analysis in the same condition and none had tampered with it before it was examined by the Chemical Examiner. The first and foremost reason for holding so is that the seal with which the recovered article and samples were sealed at the spot was not handed over to any public witness after sealing process was over and instead it was handed over to an official witness PW-8 only."
10. Ld. Counsel for appellant further relied on a case [ENTITY] & Ors. vs. State of Himachal Pradesh, 2003(3) JCC 1577. It was held by Supreme Court that:
"22. Even the recovery of torch at the instance of [ENTITY] is not free from doubt. PW3 denies the fact that a torch was recovered pursuant to a disclosure statement made by appellant [ENTITY]. He asserted that the torch was recovered from the room of the prosecutrix. Moreover the prosecutrix herself admitted that such torches are sold in the market. In the absence of any identifying mark on the torch, it is difficult to place much reliance on the recovery of the torch, which is said to have been produced by appellant [ENTITY]."
11. Ld. Counsel for appellant further relied on a case [PRECEDENT]. It was held by Delhi High Court that:
"5. Inspector [ENTITY] PW-8 testified that after completing the formalities relating to the alleged recovery of smack, he prepared the rukka (Ex.PW-8/B) on the spot and sent it to the police station on the basis of which the FIR (Ex.PW-8/C) was registered at the Police Station. The rukka (Ex.PW-8/B) reveals that the contraband was seized at 5.55 p.m. and the rukka was sent to the Police Station at 7.15 p.m. From the statements of the aforesaid prosecution witnesses it can safely be inferred that the personal search memo of the appellant (Ex.PW-1/B) and the seizure memo (Ex.PW-1/A) were prepared on the spot. Surprisingly the aforesaid documents bear the number of the FIR (Ex.PW-8/C). The number of the FIR (Ex.PW-8/C) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to how number of FIR (Ex.PW-8/C) had appeared on these documents, which were prepared on the spot before registration of the FIR at the Police Station Trilok Puri. This gives rise to two inferences that either the FIR (Ex.PW-8/C) was registered prior to the alleged recovery of the contraband or that number of the said FIR was inserted in these documents after its registration. In both the situations, the aforesaid circumstance seriously reflect upon the veracity of the prosecution story narrated by the aforesaid prosecution witness regarding recovery of the contraband from the appellant;s possession."
12. Ld. Counsel for appellant further relied on a case [PRECEDENT]. It was held by Delhi High Court that:
"It is well settled that unlawful possession of the contraband is the sine qua non for conviction under the Act and that fact has to be established by the prosecution beyond reasonable doubt ([PRECEDENT]; [PRECEDENT]). Possession has not been defined in the Act but has been judicially construed to be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object.
([PRECEDENT]; [PRECEDENT]). There are two essential elements of possession; firstly, the corpus-the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious and intelligent possession of any contraband which attracts penal provision of the Act and it is for the prosecution to establish that the accused was found in conscious and intelligent possession of the contraband. In [PRECEDENT], accused was prosecuted for the offence punishable under [SECTION] and [SECTION] of the [ACT] on the allegations that he and his servant travelled from Delhi to Abu Road by the train. At the Abu Road Station, the accused detrained and his servant took out his luggage and followed his master to the Ist Class waiting room. After some time, the accused's luggage was loaded into the trailer attached to a jeep car. Sometime later, the accused got into the jeep and when the jeep was about to start, a police head constable stopped it in order to make a search in connection with a suspected offence. On search, 75 bottled of foreign liquor were found in the trunks belonging to the accused as well as two half consumed bottles, one of which was in an attache case. The accused admitted the ownership of the luggage but he took the plea that he did not know about the existence of these numerous bottles of foreign liquor in his trunks or attache case. The Apex Court acquitted the accused on the ground of failure of the prosecution to prove that the accused had knowledge of the contents of his luggage and had accordingly possessed and imported an intoxicant in contravention of the provisions of the [ACT]."
13. Ld. Counsel for appellant further relied on a case [PRECEDENT], wherein Delhi High Court set aside the conviction and sentence by observing that:
"In this regard it was also pointed out that [ENTITY] with whom the case property was deposited, was not examined by the prosecution. Besides, it was further pointed out by the learned counsel for the petitioner that the investigating Officer, RW3 had not stated that he had deposited the specimen impression of the seal with the [ENTITY] alongwith the case property. The learned Additional Sessions Judge did not take into consideration the aforesaid vitals flaws in the prosecution case which has resulted in miscarriage of justice."
14. Ld. Counsel for appellant further relied on a case [PRECEDENT], wherein Orissa High Court set aside the conviction and sentence and observed that:
"Additionally, the Excise Malkhana register has not been produced, which would have supported the plea that the seized articles were kept in the Excise Malkhana. Only some entry number has been given. No plausible reason has been indicated as to why the register itself was not produced. That primary evidence which could have thrown sufficient light has been withheld without any explanation. It is true as submitted by learned counsel for State that the learned trial Judge could have exercised power under [SECTION] of the [ACT] (in short 'the Code) to call for the register. But that cannot be the reason for withholding the register, if at all there was any entry and if really the articles were kept in the Excise Malkhana. In [PRECEDENT], it was observed by the apex Court where the materials are deficient as regards custody of the seized articles, the accused is entitled to the relief of acquittal."
15. Ld. Counsel for appellant further relied on a case [ENTITY] vs. State, 1990(1), C.C. Cases 489 (HC), wherein Delhi High Court set aside the conviction and sentence and inter alia observed that:
"10. It is not disputed before me that it was a dark night and the police officers were very much aware that the identity of the culprits would be most important question which would arise for consideration by the Court. That is why in [ENTITY]'s statement it was mentioned that he saw the face of [ENTITY] in the torch light still in the Site Plan prepared at the spot, no indication is given of presence of any light either in the rooms where the occurrence took place or by any torch light used by [ENTITY] from the terrace of his house."
16. Ld. Counsel for appellant further relied on a case [PRECEDENT] Delhi High Court acquitted the accused and inter alia observed that:
"7. In the present case, there are circumstances which create doubt in the prosecution story. The seals allegedly used in this case did not belong to either of the member of the raiding party. No doubt it is true that some times the Investigating Officer of the S.H.O. may not be in possession of their seals having been used in some other case, but they have to give an explanation to this effect as to in which case they have used their seals earlier and why they are using the seals not belonging to them. In this case there is no explanation as to why the Investigating Officer or the S.H.O. did not use their seals while sealing the allegedly recovered heroin and the sample."
17. Ld. Counsel for appellant further relied on a case [PRECEDENT], wherein Punjab and Haryana High Court set aside the conviction and sentence and inter alia observed that:
"Concededly, the samples were seized on 3.6.1994 and the same were sent for chemical examination on 30.6.1994 after a delay of 27 days which was remained unexplained. The adequate safe-guards which have been prescribed in the procedure and which require the sending of samples promptly, have obviously been given a complete go-bye.
13. It is glaring case where the prosecution has stooped and swerved to beneficially help the appellant. The case property was obviously tampered with to deprive the prosecution of the benefit of a successful conviction and at the same time, to help the appellant in going scot-free."
18. Ld. Counsel for appellant further relied on a case [PRECEDENT], wherein Delhi High Court set aside the conviction and sentence and inter alia observed that:
"In the totality of the facts and circumstances its not only that some of the important links in the chain of circumstantial evidence are missing but in our opinion the entire chain of events are missing. The trial Court's reliance on such weak evidence which in the present facts and circumstances appears to have been planted, is unsustainable and thus liable to be set aside."
19. On considering the rival contentions of Ld. Counsel for the appellant and Ld. Additional Public Prosecutor and applying of principles of law laid down in above referred cases relied on by Counsel for appellant, I am of the view that appellant is entitled to get benefit of doubt in the present case. The reasons which support my decision are firstly, that prosecution has failed to prove the sanction as required under [SECTION] [ACT]. As per principles of law laid down in Mohinder Singh and anr. Vs. State of Haryana and [ENTITY] Vs. State of Haryana, (supra), non proving of sanction is fatal to the prosecution.
20. Secondly, PW-2 in the cross-examination admitted that design made on both sides of katta was not shown in the sketch of katta EX.PW2/A. He did not put any specific identification mark on the case properties. As per principles of law laid down in [ENTITY] & Ors. vs. State of Himachal Pradesh, (supra), non mentioning of specific identification mark and not showing the design made on the katta create doubt about the genuineness of alleged recovery from the accused.
21. Thirdly, as per the statement of PW-2 the katta was recovered from the left dub and the live bullet was recovered from the right dub of the pant of the accused on 15.11.2005 at 9.05 p.m. As per the testimony of PWs proceedings were conducted at the place of recovery i.e. at platform no. B, Anand Vihar, Delhi. PW-2 deposed that katta was seized after converting it into a pulinda and sealing with the seal of [ENTITY]. [ENTITY] does not belong to PW-2 but as per explanation of PW-2 it belonged to [ENTITY] incharge [ENTITY]. There is no explanation as to when he obtained the seal from [ENTITY] incharge and put his seal on the pulinda of the katta. This has further created doubt about the prosecution case.
22. Fourthly, PW-2 in his cross-examination admitted that bus drivers, conductors and other persons were present at the place of recovery and arrest of accused. He did not give any notice to any of them for their refusal to join the investigation. Non joining of investigation by public person creates doubt about the truthfulness of the prosecution case. As per principles of law laid down in [PRECEDENT], (supra), gave benefit of doubt to the accused in this regard.
23. Fifthly, PW-3 in his cross-examination admitted that he recorded the proceedings at the spot and there was street light at the spot. He further admitted that he did not show the source of light in site plan EX.PW2/E. The principles of law laid down in [ENTITY] vs. State, (Supra) support the case of the appellant in this regard in creating doubt about the truthfulness of the prosecution case.
24. Sixthly, on perusal of FIR and chargesheet I find that in all the documents FIR no. 406/05 has been mentioned. The arguments of Ld. Defence Counsel that these documents were prepared at the P.S. after lodging of FIR seems to be convincing. Principles of law laid down in [PRECEDENT], (supra), supports the case of the appellant in this regard in creating doubt about the truthfulness of the prosecution case.
25. Lastly, the principles of law laid down in [PRECEDENT], (supra), [PRECEDENT], (supra), [PRECEDENT]), [PRECEDENT], (supra), [PRECEDENT], (supra), [PRECEDENT], (supra), [PRECEDENT], (supra), [PRECEDENT], (supra) and [PRECEDENT], (supra) further support his case in creating doubt about the truthfulness of the prosecution case.
26. In view of the above reasons and discussion I find merit in the appeal. I do not conquer with the findings of Ld. A.C.M.M. In my view it would be hazardous and unsafe to convict the accused/appellant on the basis of evidence available on record. Therefore, appeal is allowed and the impugned judgment and the order on sentence are set aside. Bail bond furnished by the appellant is canceled and surety stands discharged.
27. However, in view of provisions of [SECTION], the appellant is directed to furnish bail bond in sum of Rs. 20,000/- with one surety of like amount for a period of six months.
28. Trial court record be returned with copy of this order.
29. Appeal file be consigned to Record Room after furnishing of surety bonds.
Announced in the Open Court on 13.01.2012 (DR. [ENTITY]) Additional Sessions Judge-02,East Karkardooma Courts, Delhi