In the Court of Sh. [ENTITY] : Chief Metropolitan Magistrate, North District, Rohini Courts, Delhi [CASE NUMBER] Unique Case ID No. : 02404R0149052010 FIR No. 46/10 Police Station : Crime Branch In the matter of: [ENTITY] VERSUS 1) [ENTITY] S/o Sh. Raj Roop R/o Village & P.O. Nangal Thakran, Delhi39 2) [ENTITY] S/o Sh. Jawahar Singh R/o Village & P.O. Nangal Thakran, Delhi39. Accused Date of Institution : 08.6.2010 Date of Arguments: 24.8.2013 Date of Judgment : 26.8.2013 [CASE NUMBER] Page no. 1 of 11 JUDGMENT:
On 08.6.2010 a police report, giving rise to the present case, was put up by the state through the officer in charge of police station Alipur, Delhi before the learned predecessor with a view to take cognizance of offence punishable under [SECTION] of the [ACT] and to proceed against accused [ENTITY] and [ENTITY] for their having committed the said offence. It was reported in the said police report that on the basis of an information (Ex. PW1/E) laid before the officer in charge on 09.4.2010 by Head Constable (HC) [ENTITY] (PW1) first information report (FIR) bearing no. 46/2010 (copy: Ex. PW3/A) was registered. As per the police report [ENTITY] informed the police that on 09.4.2010 he alongwith Constable [ENTITY], Constable [ENTITY] and Constable [ENTITY] was present in the area of Rohini, Delhi for collection of information about the active criminals in the locality; that at about 8.30pm an informer met [ENTITY] and told that the persons involved in the recent murder, committed in the area of Bawana, would visit Sai Baba Mandir situated at Sector7, Rohini, Delhi and if a raid conducted upon them, they could be apprehended and illegal weapons may also have been recovered; that the information was conveyed by [ENTITY] to the senior officers immediately and after getting proper instructions, a raiding party, consisting of available staff, was constituted by [ENTITY]; that [ENTITY] also conveyed the information to 56 passersby about the [CASE NUMBER] Page no. 2 of 11 accused persons visiting the temple and requested them to participate in the raid but no one agreed to; that at about 9.30pm, on the basis of the information the accused persons were apprehended and their search was conducted; that during the search accused [ENTITY] was found possessing a 7.65mm pistol with a live cartridge whereas accused [ENTITY] was possessing three 7.65mm live cartridges; that the police was informed and after registration of FIR the matter was investigated. It was further reported that after investigation both the accused were found involved in the commission of offence punishable under [SECTION] of [ACT] and having taken sanction under [SECTION] of [ACT], the prosecution was launched. It was also stated in the police report that both the accused be put on trial and be punished for having committed the said offence.
2. On the police report my learned predecessor having taken cognizance of offence had both the accused persons brought before him; and subsequently complied with the provisions of [SECTION] of the [ACT] ([ACT]).
3. On 9.11.2010 after hearing Assistant Public Prosecutor (APP) and counsel for both the accused formal charges were framed against both the accused persons whereby each of the accused was charged with the commission of offence punishable under [SECTION] of [ACT]. The charges were read over and explained to both the accused to which they did [CASE NUMBER] Page no. 3 of 11 not plead guilty and claimed trial.
4. In support of its case the prosecution got examined PW1 [ENTITY], PW2 [ENTITY], PW3 Assistant Sub Inspector (ASI) [ENTITY], PW4 Constable [ENTITY], PW5 Constable [ENTITY], PW6 [ENTITY], PW7 Mr. [ENTITY], PW8 Mr. [ENTITY] and PW9 Sub Inspector (SI) [ENTITY]. During examination of the prosecution witnesses documents Ex. PW1/A to Ex. PW1/E, Ex. PW1/D1, Ex. PW3/A, Ex. PW5/A to Ex. PW5/F, Ex. PW6/A, Ex. PW6/B, Ex. PW7/A, Ex. PW7/DA, Ex. PW8/A and the case property Ex. P1 to Ex. P4 were also tendered.
5. On 22.5.2012 in view of the submissions made by the learned APP to the effect that all the prosecution witnesses had been examined, the prosecution evidence was closed by the order of court; and subsequently on 04.9.2012 the accused persons were examined under [SECTION] of [ACT]
6. During his examination under [SECTION] of [ACT], accused [ENTITY] expressed his innocence and stated that he has been falsely implicated in the present case. During his examination accused [ENTITY] further stated that since 08.4.2010 he was already in police custody and his arrest was falsely shown on 09.4.2010 from near Sai Baba Mandir and the case property was falsely planted upon him. The accused expressed his desire to lead evidence in his defence.
7. During his examination under [SECTION] of [ACT], accused [CASE NUMBER] Page no. 4 of 11 [ENTITY] expressed his innocence and stated that he has been falsely implicated in the present case. During his examination accused [ENTITY] further stated that since 08.4.2010 he was already in police custody and his arrest was falsely shown on 09.4.2010 from near Sai Baba Mandir and the case property was falsely planted upon him. The accused expressed his desire to lead evidence in his defence.
8. In his defence accused [ENTITY] got examined DW1 Sh. [ENTITY] and DW2 Sh. Shri [ENTITY] and thereafter defence evidence on behalf of accused [ENTITY] was closed.
9. No evidence has been led by accused [ENTITY] in his defence.
10. I have heard Mr. [ENTITY], APP for the [ENTITY] and Mr. [ENTITY], Advocate for accused [ENTITY]. I have also heard accused [ENTITY] in person and have gone through the material on record carefully.
11. Having drawn my attention on the testimonies of PW1 [ENTITY], PW2 [ENTITY], PW3 ASI [ENTITY], PW4 Constable [ENTITY], PW5 Constable [ENTITY], PW6 [ENTITY], PW7 Mr. [ENTITY], PW8 Mr. [ENTITY] and PW9 SI [ENTITY] and documents Ex. PW1/A to Ex. PW1/E, Ex. PW1/D1, Ex. PW3/A, Ex. PW5/A to Ex. PW5/F, Ex. PW6/A, Ex. PW6/B, Ex. PW7/A, Ex. PW7/DA, Ex. PW8/A and the case property Ex. P1 to Ex. P4 it is submitted by the [CASE NUMBER] Page no. 5 of 11 learned APP that from the testimonies of the witnesses, the documents and the case property tendered in evidence by the prosecution it has been proved that on 09.4.2010 at about 9.30pm accused [ENTITY] was found possessing a 7.65mm pistol with a live cartridge whereas accused [ENTITY] was found possessing three 7.65mm live cartridges in contravention of the provisions of [ACT] and therefore, both the accused be convicted and severely punished for having committed the said offence.
12. Per contra, having drawn my attention on the testimonies of PW1 [ENTITY], PW2 [ENTITY], PW4 Constable [ENTITY], PW7 Mr. [ENTITY] and PW8 Mr. [ENTITY], documents Ex. PW7/DA and Ex. PW8/A and the law laid down in Sans Pal Singh v. [ENTITY] of Delhi, AIR 1999 SC 49, Mrityunjay v. [ENTITY] of Haryana, 2012 (5) RCR (Criminal) 67, [PRECEDENT] @ Chini v. [ENTITY] of Haryana, 2012 (4) RCR (Criminal) 770, [PRECEDENT] alias Indraka v. [ENTITY] of M.P., 2003 (2) RCR (Criminal) 548, Nanak Chand v. [ENTITY] of Delhi, 1992 (1) RCR 412, [ENTITY] of Haryana v. Sadhu, 1992 (3) RCR 425 and Gurdial Singh v. [ENTITY] of Punjab, 2004 (2) RCR (Criminal) 745 it submitted by counsel for accused [ENTITY] that the accused has been falsely implicated in this case and he is entitled to be acquitted.
13. It is submitted by accused [ENTITY] that he has been falsely implicated and he is entitled to be acquitted.
14. I have given my thoughtful consideration to the submissions [CASE NUMBER] Page no. 6 of 11 made on behalf of the parties.
15. As per the testimonies of PW1 [ENTITY], PW2 [ENTITY], PW4 Constable [ENTITY] on 09.4.2010 at about 8.30pm an informer met [ENTITY] and told him that the persons involved in a murder, committed in the area of Bawana, would visit Sai Baba Mandir situated at Sector7, Rohini, Delhi and if a raid was conducted upon them, they could be apprehended and illegal weapons may also have been recovered; that the information was conveyed by [ENTITY] to the senior officers immediately and after getting proper instructions, a raiding party, consisting of available staff, was constituted by [ENTITY]; that [ENTITY] also conveyed the information to 56 passersby about the accused persons visiting the temple and requested them to participate in the raid but no one agreed to; that at about 9.30pm, on the basis of the information the accused persons were apprehended and their search was conducted; that during the search accused [ENTITY] was found possessing a 7.65mm pistol with a live cartridge whereas accused [ENTITY] was possessing three 7.65mm live cartridges Ex. P1 to Ex. P4.
16. During their respective examination under [SECTION] of [ACT], both the accused have expressed their innocence and have taken the defence that they have been falsely implicated; and that the firearm and the ammunition were planted on them.
17. From the testimonies of the prosecution witnesses it has been [CASE NUMBER] Page no. 7 of 11 proved that no public witness was associated during the course of search and seizure proceedings and the prosecution case hinges solely on the testimonies of the police officials. As per the testimonies of PW1 [ENTITY], PW2 [ENTITY], PW4 Constable [ENTITY], the secret information was received at 8.30 pm and the accused was apprehended at 9.30 pm. Thus, there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provision of [SECTION] of [ACT] for associating public witnesses during the course of search and seizure. From the testimonies of PW1 [ENTITY], PW2 [ENTITY], PW4 Constable [ENTITY] it has also been proved that the accused were apprehended near a temple which is a crowded place. Prosecution witnesses PW1 [ENTITY], PW2 [ENTITY], PW4 Constable [ENTITY], who were members of the raiding party, and PW9 SI [ENTITY], the Investigating Officer (IO) of the case, want this court to believe that at the relevant time public witnesses were approached but they declined to join the raiding party. It is noteworthy that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may in this context be made to the provision of [SECTION] of [ACT], which [CASE NUMBER] Page no. 8 of 11 provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under [SECTION] of [ACT], when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under [SECTION] of the [ACT] ([ACT]). In the instant case, there is nothing to indicate that the authorized police officer had served or even attempted to serve an order in writing upon any public witness as envisaged by [SECTION] of [ACT]
18. There are other infirmities which have shaken the foundation of the prosecution case. As per the testimony of PW8 Sh. [ENTITY], Assistant Director, Ballistics, Forensic Science Laboratory, Delhi and his report Ex. PW8/A the improvised pistol analysed by him was not in working condition. It has been held by the Hon'ble Madras High Court in [PRECEDENT]'s case (supra) that a conviction under [SECTION] of [ACT] cannot be sustained if the alleged firearm was found not in working condition.
19. As per [SECTION] of [ACT] no prosecution shall be instituted against any person in respect of any offence under [SECTION] of [ACT] without the previous sanction of the District Magistrate. In the National Capital Territory of Delhi the powers of District Magistrate can be exercised by a Commissioner of Police.
20. The law is well settled that sanction under [SECTION] of [ACT] is not a mere formality. In this regard it has been held by the [CASE NUMBER] Page no. 9 of 11 Hon'ble Madhya Pradesh High Court in [PRECEDENT] and another v. [ENTITY] of M.P., 1998 CRI. L. J. 1366 as follows:
I may point out here that sanction is not a mere formality. It has to be proved that it was granted by the authority after applying his mind. It must be shown that the firearm or weapon with respect to which sanction was prayed was actually taken to the authority concerned and after looking to it, the relevant papers, understanding and after applying his mind sanction was granted. In this case, there is complete absence of the sanction. The accused could not, therefore, be convicted at all. (emphasis added)
21. Similar view has been taken by the Hon'ble Punjab and Haryana High Court in [PRECEDENT]'s case (supra).
22. In this case alongwith the police report a document purporting to be sanction under [SECTION] of [ACT] dated 07.6.2010 was filed by the IO. The said sanction dated 07.6.2010 was accorded by Sh. [ENTITY], Additional Deputy Commissioner of Police, Crime, Delhi, who appeared as PW7. During his examination as PW7 Sh. [ENTITY] having deposed that the sanction was accorded after going through documents, namely, copies of proposed charge sheet, statements under [SECTION] of [ACT], and FSL result, proved the said sanction as Ex. PW7/A. During his cross examination PW7 Sh. [ENTITY] admitted that he had accorded sanction only on the basis of the material placed before him; and that he had not personally verified all the facts.
23. From the testimony of PW7 Sh. [ENTITY] and document Ex. PW7/A it has been proved that before according sanction Ex. PW7/A he [CASE NUMBER] Page no. 10 of 11 had neither inspected the case property nor the same was produced before him. In the absence of the production of the case property before PW7 Sh.
[ENTITY] by the IO and inspection of the same by him how he could have taken a rational decision regarding grant of sanction under [SECTION] of [ACT]?
24. In the light of the law laid down in [PRECEDENT]'s case (supra) and [PRECEDENT]'s case (supra) this court is satisfied that sanction Ex. PW7/A was accorded by PW7 Sh. [ENTITY] without due application of mind and thus the same is vitiated and cannot be treated as lawful sanction under [SECTION] of [ACT]. Thus in this case, there is complete absence of the sanction. The accused cannot, therefore, be convicted at all.
25. In view of my above discussion accused [ENTITY] and [ENTITY] are found not guilty and they are acquitted of charge under [SECTION] of [ACT]. File be sent to records.
Announced in the open court ([ENTITY]) on 26 August, 2013 th Chief Metropolitan Magistrate North District:Rohini:Delhi [CASE NUMBER] Page no. 11 of 11