Delhi District Court
State vs Irfan @ Don on 17 February, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-08 (CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDED OVER BY : MS. SAYESHA CHADHA, DJS
FIR No. 264/2017
PS : Kamla Market
U/s 25 Arms Act
State vs. Irfan @ Don and
Anr
Date of Institution of case: 25.09.2018
Date when Judgment reserved: 24.01.2025
Date on which Judgment pronounced: 17.02.2025
JUDGMENT
A. Case No. : 12743/18
B. Date of Institution of Case : 25.09.2018
C. Date of Commission of Offence : 04.11.2017
D. Name of the complainant : SI Ravinder Kumar
E. Name of the Accused : 1. Irfan @ Don s/o Sh.
& his parentage and residence Jalil Ahmad, R/o Village
Sadruddin Nagar, PS
Nahtor, District Bijnor,
UP.
2. Galib @ Painter s/o Sh.
Makbool Ahmad, r/o
Village Birdu, Nangli, PS
Kirtpur, District Bijnour,
UP.
F. Offences complained of : U/s 25 Arms Act
G. Plea of the Accused : Pleaded not guilty
H. Final order : Acquittal
I. Date of such order : 17.02.2025
State Vs. Irfan @ Don and Anr.
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PS Kamla Market
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BRIEF STATEMENT OF REASONS FOR DECISION OF THE
CASE:
1. Breifly stated that on 04.11.2017 at about 03:45 PM near
Ajmeri Gate Chowk, Delhi within the jurisdiction of P.S. Kamla
Market, accused Irfan @ Don was found in possession of a
country made pistol 32 bore alongwith 3 live cartride of country
made pistol 32 bore and accused Galib @ Painter was found in
possession of a country made pistol alongwith 2 live cartride of
12 Bore as per seizure mark X without any license or permit and
thereby, accused persons committed an offence punishable U/s.
25 Arms Act.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer
(hereinafter, “IO”) undertook investigation and on culmination of
the same, charge-sheet against both the accused was filed. After
taking cognizance of the offence, a copy of charge-sheet was
supplied to both accused persons in terms of Section 207 of
the Code of Criminal Procedure, 1973 (hereinafter, “CrPC“).
On finding a prima facie case against the accused, charge under
sections 25 Arms Act was framed against b o t h accused to
which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
3. Thereafter, the prosecution was given the opportunity to
substantiate the allegations against the accused. The prosecution
examined 5 (five) witnesses in support of its case:
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4. PW-1 Retired SI Ravinder Kumar has deposed that
04.11.2017, he was on duty. A secret informer came to him and
informed him that accused persons namely Irfan and Galib who
were thieves, they will come at around 3:30 pm on motor cycle
make PASSION PRO bearing registration no. HR26AM-6139
and on another motorcycle TVS APACHE without number plate
and they have tools to break the locks and doors and also illegal
weapons. If raided timely they can be arrested. In regarding this
information, he informed Inspector Rakesh Kumar who directed
to take appropriate and timely actions. Thereafter, he formed a
raiding team consisting ASI Lal Singh, HC Santosh, HC Vikram,
HC Sunil , Ct. Jamil Ahmed with secret informer. Thereafter, he
got recorded the above said information vide DD No. 7 dated
04.11.2017. He alongwith raiding team departured in a private
car and in civil dress from the PS alongwith IO Kit as per record
vide DD No. 8. At around 12:40 pm they reached Ajmeri Gate.
He requested 4-5 public person to join the investigation but they
refused on pretext of urgent work because of paucity of time no
notice was served on them. Thereafter, he briefed the raiding
party and asked them to take position and asked them to wait for
the accused persons. At about 3:45 pm, two persons came on two
separate motorcycles make PASSION PRO bearing registration
no. HR26AM-6139 and on another motorcycle TVS APACHE
without number plate. After seeing the bike riders the secret
informer identified them and informed him. The person who was
riding motorcycle make PASSION PRO was apprehended by HC
Sunil and another person who was riding another motorcycle
TVS APACHE was apprehended by HC Vikram. HC Sunil
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produced that person namely Ghalib (the name of whom came to
know later on) and HC Vikram produced the person to him
namely Irfan @ Don (the name of whom came to know later on).
He made the cursory search of both accused persons and one desi
katta was recovered from the left dub of the pant of the accused
Irfam and three live cartridges 0.32mm bore were recovered from
the right pocket of the accused Irfan. He prepared the sketch
memo of recovered weapon on a white paper vide memo Ex.
PW1/A bearing his signature at point A and seized the same in a
white pullanda sealed with the seal of RK and prepared a seizure
memo vide seizure memo Ex. PW1/B bearing his signature at
point A. One black bag was also recovered from the Irfan in
which 5 tools of breaking the lock and doors were found and the
same were seized by putting in the same bag and put it in the
white pullanda and sealed it with the seal of RK vide seizure
memo Ex. PW1/C bearing his signature at point A. He also
seized the TVS Apache motorcycle vide seizure memo Ex.
PW1/D bearing his signature at point A. Thereafter, he made the
cursory search of accused Ghalib and recovered one desi katta of
12 bore from the left dub of the pant and two live cartridges from
the right pocket of the pant of accused Ghalib. He prepared the
sketch memo in this regard vide sketch memo Ex. PW1/E
bearing his signature at point A. He sealed the same in a white
pullanda and the put the seal of RK and also prepared the seizure
memo in this regard Ex. PW1/F bearing his signature at point A.
He also seized the motorcycle make Hero Honda Passion plus
vide seizure memo Ex. PW1/G bearing his signature at point A.
He prepared the FSL form and also put the sample seal on that
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form. Seal after use were handed over to HC Vikram. Thereafter,
he prepared the tehrir and rukka Ex. PW1/H bearing his signature
at point A and got the FIR registered through HC Sunil.
Thereafter, second IO SI Rameshwar Singh came to the spot as
per the instructions by Inspector Special Staff Sh. Rakesh
Kumar. Thereafter, he informed about the incident to the second
IO and handed over the seized documents and accused persons
and seized case property and also nakal tehrir. Thereafter, second
IO prepared the site plan at his instance. In the meantime, HC
Sunil came to the spot after registration of FIR and handed over
the copy of FIR and original tehrir and rukka to the second IO.
Thereafter, second IO recorded his statement u/s 161 Cr. PC and
discharged him from the proceedings. He has correctly identified
both accused persons. He has also correctly identified one desi
katta of 12 bore and two live cartridges are taken out Ex. P1 and
one desi katta of 32 bore and three live cartridges Ex. P2. He has
correctly identified one black bag containing tools Ex. P3. Both
motorcycles were released on superdari vide suerpdarinama Ex.
P4 and Ex. P5. He has correctly identified the photographs of the
motorcycles Ex. P6.
5. During cross-examination, PW-1 stated that the secret
informer left the incident spot after signalling towards accused
persons. He cannot tell the registration number of the two
motorcycle on which they proceeded to the spot. He was
discharged from the proceedings of this case before 8:00 pm.
They intercepted the accused persons at the turn at GB Road. His
statement was recorded by the second IO on the spot. He did not
remember the exact time of recorded his statement by second IO.
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Second IO recorded his statement only and none else. He
admitted that the incident spot was crowded area and surrounded
by the shops. He admitted that he did not serve any notice to join
the raiding. He admitted that he did not recorded their names and
address who refused to join the raiding party. Neither he nor any
member of raiding party gave their personal search to any
independent persons. He admitted that he did not request to the
shopkeepers to join the raiding party. He cannot tell whether any
CCTV camera are installed at the incident spot. He denied that
CCTV camera are installed at the spot and he did not deliberately
secured the CCTV footage. He denied that accused was not
apprehended at the incident spot rather they were lifted from
their houses. He admitted that he know the accused Irfan prior to
the instant case as he is involved in other cases also. He denied
that as he know the accused Irfam prior to this case that’s why he
again apprehended him and put him behind the bars. He
admitted that no videography or photographs were taken of the
apprehension of the accused persons by any member of raiding
team. He denied that accused persons are falsely implicated in
this case. He denied that nothing was recovered from the accused
persons. He denied that he was deposing falsely.
6. PW-2 ASI Vikram has deposed that on 04.11.2017, he was
posted as HC at special staff, Central District, kamla market,
Delhi. On that day while he was on duty, a secret informer came
to meet SI Ravinder and informed him that accused persons
namely Irfan and Galib who were thieves, will come at around
3:30 pm at Ajmeri Gate on motor cycle make PASSION PRO
bearing registration no. HR26AM-6139 and on another
State Vs. Irfan @ Don and Anr.
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motorcycle TVS APACHE colour red which was without
number plate and they have tools to break the locks and doors of
the gates of the houses and also carrying illegal weapons with
them and if raided timely they can be arrested. IO SI Ravinder
informed about the above said information to Inspector Rakesh
Kumar who directed him to take appropriate and timely
necessary action. Thereafter, IO SI Ravinder formed a raiding
party consisting of ASI Lal Singh, HC Santosh, HC Sunil , Ct.
Jamil Ahmed including him and secret informer. Thereafter, he
got recorded the above said information vide DD No.7 dated
04.11.2017. He alongwith raiding party departed in a private car
and in civil dress from the PS vide DD No. 8. At around 12:40pm
they reached at Ajmeri Gate chowk. Thereafter, IO requested 4-5
public persons to join the investigation but they refused on
pretext of urgent work and due to paucity of time no notice was
served on them by the IO. Thereafter, IO SI Ravinder briefed the
raiding party and asked them to take their positions and wait for
the accused persons. At about 3:45 pm, two persons came on two
separate motorcycles make PASSION PRO bearing registration
no. HR26AM-6139 and on another motorcycle TVS APACHE
colour red without number plate. After seeing the bike riders the
secret informer identified them and informed about the same to
the IO. The person who was riding motorcycle make PASSION
PRO was apprehended by HC Sunil and another person who was
riding another motorcycle TVS APACHE was apprehended by
me. HC Sunil produced accused Ghalib (the name of whom I
came to know later on) and he produced accused namely Irfan @
Don (the name of whom I came to know later on) to IO SI
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Ravinder. IO SI Ravinder carried out the cursory search of both
accused persons and one desi katta was recovered from the left
dub of the pant of the accused Irfan@ Don and three live
cartridges of 32 mm bore were recovered from the right pocket of
the accused Irfan. IO SI Ravinder prepared the sketch memo of
recovered weapon on a white paper vide memo Ex. PW1/A
bearing his signature at point B and seized the same in a white
pullanda and sealed with the seal of RK and prepared a seizure
memo vide memo Ex. PW1/B bearing his signature at point B.
One black colour pitthu bag was also recovered from the accused
Irfan in which 5 tools of breaking the lock and doors were found
and the same were seized by putting in the same bag and put the
same in the white cloth pullanda and sealed it with the seal of
RK vide memo Ex. PW1/C bearing his signature at point B. IO
SI Ravidnder also seized the TVS Apache motorcycle vide memo
Ex.PW1/D bearing his signature at point B. Thereafter, IO SI
Ravinder carried out the cursory search of accused Ghalib and
one desi katta of 12 bore was recovered from the left dub of the
pant and two live cartridges from the right pocket of the pant of
accused Ghalib. IO SI Ravinder prepared the sketch memo in
this regard vide memo Ex. PW1/E. IO SI Ravinder sealed the
same in a white cloth pullanda and put the seal of RK on it and
also prepared the seizure memo in this regard Ex. PW1/F . IO SI
Ravinder also seized the motorcycle make Hero Honda Passion
Plus red and black colour vide seizure memo Ex. PW1/G
bearing his signature at point B. Thereafter, IO SI Ravinder
prepared the FSL form and also put the sample seal on that form.
Seal after use was handed over to him. IO prepared the
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tehrir/rukka Ex. PW1/H and got the FIR registered through HC
Sunil. Thereafter, second IO SI Rameshwar Singh came to the
spot as per the instructions by Inspector Special Staff Sh. Rakesh
Kumar. Thereafter, IO SI Ravinder informed about the incident
to the second IO and handed over the seized documents and
accused persons and seized case property. In the meantime, HC
Sunil came to the spot after registration of FIR and handed over
the copy of FIR and original tehrir and rukka to the second IO.
Thereafter, second IO prepared the site plan at the instance of IO
SI Ravinder. Thereafter, second IO recorded his statement u/s
161 CrPC and discharged him. Second IO SI Rameshwar
arrested both the accused persons vide memos Ex.PW2/A and
Ex.PW 2/B both bearing his signatures at Point A and carried out
their personal search vide memos Ex. PW2/C and Ex. PW2/D
both bearing his signatures at Point A. Thereafter, 2 nd IO
recorded disclosure statement of both the accused persons vide
memos Ex. PW2/E and Ex. PW2/F both bearing his signatures at
Point A. The information about arrest of both the accused
persons were given to their wives respectively. Thereafter both
the accused persons were taken to the hospital for their medical
examination and were later on put behind the bars in the lock up
of the PS Kamla Market and IO deposited the case property in
the malkhana. IO recorded his statement U/s 161 CrPC and he
was discharged. He has correctly identified accused Irfan @ Don.
Ld counsel Mr. Shakeel Ahmad for both the accused persons
submits that he was not disputing the identity of accused Ghalib
@ Painter and the identity of both the motorcycles recovered
from the accused persons. He has also correctly identified one
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desi katta of 12 bore and two live cartridges are taken out Ex. P1
and one desi katta of 32 bore and three live cartridges Ex. P2. He
has correctly identified one black bag containing tools Ex. P3.
Both motorcycles were released on superdari vide suerpdarinama
Ex. P4 and Ex. P5. He has correctly identified the photographs of
the motorcycles Ex. P6.
7. During cross-examination, PW-2 admitted that on the
sketch memo Ex.PW1/A and Ex. PW1/E, there was over writing
on the month mentioned in the date of each memo. The site plan
of the spot was prepared by IO SI Rameshwar. He denied that
both the accused persons were apprehended from Mustafabad
and not from Ajmeri Gate. The personal search of both the
accused persons was done in his presence. In the personal search
of accused Irfan, two mobile phones and brown coloured purse
made of raxin containing Rs. 720/- in cash and some documents
and cards and DL of accused was recovered. In the personal
search of accused Ghalib @ Painter, one mobile phone and one
brown coloured raxin purse containing Rs. 1500/- approximately
and one DL and Aadhar Card of accused was recovered. He
signed on the seizure memos of both the motorcycles and also
on the seizure of bag recovered from accused Irfan and the
seizure of 32 bore desi katta along with 3 live cartridges
recovered from accused Irfan . The secret informer left the
incident spot after signaling towards accused persons. He
admitted that the incident spot was crowded area and surrounded
by the shops. He admitted that IO did not serve any notice to join
the raiding party. He admitted that IO did not record their names
and address who refused to join the raiding party. There was no
State Vs. Irfan @ Don and Anr.
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CCTV camera installed at the incident spot. He denied that
CCTV camera are installed at the spot and IO did not deliberately
secure the CCTV footage. There was no Police Booth at the
incident spot i.e. at the Ajmeri Gate chowk and neither there was
any red light at that time in the year 2017. He admitted that no
videography or photographs were taken of the apprehension of
the accused persons by any member of raiding team in his
presence. He denied that accused persons are falsely implicated
in this case. He denied that nothing was recovered from the
accused persons. He denied that he was deposing falsely.
8. PW-3 ASI Sunil has deposed that on 04.11.2017, he was
posted as HC at special staff, Central District, kamla market,
Delhi. On that day while he was on duty, a secret informer came
to meet SI Ravinder and informed him that accused persons
namely Irfan and Galib who were thieves, will come at around
3:30 pm at Ajmeri Gate on motor cycle make PASSION PRO
bearing registration no. HR26AM-6139 and on another
motorcycle TVS APACHE colour red which is without number
plate and they have tools to break the locks and doors of the gates
of the houses and also carrying illegal weapons with them and if
raided timely they can be arrested. IO SI Ravinder informed
about the above said information to Insp. Rakesh Kumar who
directed him to take appropriate and timely necessary action.
Thereafter, IO SI Ravinder formed a raiding party consisting of
ASI Lal Singh, HC Santosh, HC Vikram, Ct. Jamil Ahmed
including me and secret informer. Thereafter, he got recorded the
above said information vide DD No. 7 dated 04.11.2017.
Thereafter, HC Vikram alongwith raiding party departed in a
State Vs. Irfan @ Don and Anr.
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private vehicle and in civil dress from the PS vide DD No. 8. At
around 12:40pm they reached at Ajmeri Gate chowk. Thereafter,
IO requested 4-5 public persons to join the investigation but they
refused on pretext of urgent work and due to paucity of time no
notice was served on them by the IO. Thereafter, IO SI Ravinder
briefed the raiding party and asked us to take our positions and
wait for the accused persons. At about 3:45 pm, two persons
came on two separate motorcycles make PASSION PRO bearing
registration no. HR26AM-6139 and on another motorcycle TVS
APACHE colour red without number plate. After seeing the bike
riders the secret informer identified them and informed about the
same to the IO. The person who was riding motorcycle make
PASSION PRO was apprehended by him and another person who
was riding another motorcycle TVS APACHE was apprehended
by HC Vikram. He produced accused Ghalib (the name of whom
I came to know later on) and HC Vikram produced accused
namely Irfan @ Don (the name of whom I came to know later
on) to IO SI Ravinder. Thereafter, IO SI Ravinder carried out the
cursory search of both accused persons and one desi katta was
recovered from the left dub of the pant of the accused Irfan@
Don and three live cartridges of 32 mm bore were recovered
from the right pocket of the accused Irfan. IO SI Ravinder
prepared the sketch memo of recovered weapon on a white paper
vide memo Ex. PW1/A and seized the same in a white pullanda
and sealed with the seal of RK and prepared a seizure memo vide
memo already Ex. PW1/B. One black colour pitthu bag was also
recovered from the accused Irfan in which 5 tools of breaking
the lock and doors were found and the same were seized by
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putting in the same bag and put the same in the white cloth
pullanda and sealed it with the seal of RK vide memo Ex. PW1/C
bearing his signature at point C. IO SI Ravidnder also seized the
TVS Apache motorcycle vide memo Ex. PW1/D bearing his
signature at point C. Thereafter, IO SI Ravinder carried out the
cursory search of accused Ghalib and one desi katta of 12 bore
was recovered from the left dub of the pant and two live
cartridges from the right pocket of the pant of accused Ghalib. IO
SI Ravinder prepared the sketch memo in this regard vide memo
Ex. PW1/E bearing his signature at point B. IO SI Ravinder
sealed the same in a white cloth pullanda and put the seal of RK
on it and also prepared the seizure memo in this regard Ex.
PW1/F bearing his signature at point B. IO SI Ravinder also
seized the motorcycle make Hero Honda Passion Plus red and
black colour vide seizure memo Ex. PW1/G bearing his signature
at point C. Thereafter, IO SI Ravinder prepared the FSL form
and also put the sample seal on that form. Seal after use was
handed over to HC Vikram. IO prepared the tehrir/rukka Ex.
PW1/H and got the FIR registered through him. After
registration of the FIR, he came back at the spot and handed
over the copy of FIR and original tehrir and rukka to the second
IO SI Rameshwar who was already present there. Thereafter,
second IO prepared the site plan at the instance of IO SI
Ravinder. Thereafter, second IO recorded his statement u/s 161
Cr. PC and discharged him. Thereafter 2 nd IO SI Rameshwar
arrested both the accused persons vide memos Ex. PW2/A and
Ex. PW 2/B both bearing his signatures at Point B and carried out
their personal search vide memos Ex. PW2/C and Ex. PW2/D
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both bearing his signatures at Point B. Thereafter, 2 nd IO recorded
disclosure statement of both the accused persons vide memos Ex.
PW2/E and Ex. PW2/F both bearing his signatures at Point B.
The information about arrest of both the accused persons were
given to their wives respectively. Thereafter both the accused
persons were taken to the hospital for their medical examination
and were later on put behind the bars in the lock up of the PS
Kamla Market and IO deposited the case property in the
malkhana. IO recorded his statement U/s 161 Cr. P. C and he
was discharged. He has correctly the accused Irfan @ Don. Ld
counsel Mr. Shakeel Ahmad for both the accused persons
submits that he was not disputing the identity of accused Ghalib
@ Painter and the identity of both the motorcycles recovered
from the accused persons. He has also correctly identified one
desi katta of 12 bore and two live cartridges are taken out Ex. P1
and one desi katta of 32 bore and three live cartridges Ex. P2. He
has correctly identified one black bag containing tools Ex. P3.
Both motorcycles were released on superdari vide suerpdarinama
Ex. P4 and Ex. P5. He has correctly identified the photographs of
the motorcycles Ex. P6.
9. During cross-examination, PW-3 admitted that the incident
spot was crowded area and surrounded by the shops. He admitted
that IO did not serve any notice to join the raiding party. He
admitted that IO did not record their names and address who
refused to join the raiding party. There was no CCTV camera
installed at the incident spot. He denied that CCTV camera are
installed at the spot and IO did not deliberately secured the
CCTV footage. There was no Police Booth at the incident spot
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i.e. at the Ajmeri Gate chowk and neither there was any red light
at that time in the year 2017. He admitted that on the sketch
memo Ex.PW1/A and Ex. PW1/E, there was over writing on the
month mentioned in the date of each memo. The site plan of the
spot was prepared by IO SI Rameshwar. He denied that both the
accused persons were apprehended from Mustafabad and not
from Ajmeri Gate. The personal search of both the accused
persons was done in his presence. In the personal search of
accused Irfan, two mobile phones and brown coloured purse
made of raxin containing Rs. 720/- in cash and some documents
and cards and DL of accused was recovered. In the personal
search of accused Ghalib @ Painter, one mobile phone and one
brown coloured raxin purse containing Rs. 1500/- approx. and
one DL and Aadhar Card of accused was recovered. He signed
on the seizure memos of both the motorcycles and also on the
seizure of bag recovered from accused Irfan and the seizure of 12
bore desi katta along with 2 live cartridges recovered from
accused Irfan. The secret informer left the incident spot after
signaling towards accused persons. He finally left the spot at
around 8:30 pm. He signed all the documents at the spot. He
admitted that no videography or photographs were taken of the
apprehension of the accused persons by any member of raiding
team in his presence. He denied that accused persons are falsely
implicated in this case. He denied that nothing was recovered
from the accused persons. He denied that case property was
planted upon both the accused persons at the instance of the IO
SI Ravinder. He denied that he was deposing falsely.
10. PW-4 Retired SI Rameshwar has deposed that on
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04.11.2017, he received DD No. 11 regarding apprehension of
two boys alongwith two country made pistols and implements to
break the gates by SI Ravinder Kumar at Ajmeri Gate. Thereafter,
he went to the spot and he met SI Ravinder, ASI Lal singh, HC
Vikram, HC Santosh, HC Sunil, Ct. Jamil and they produced
before him both accused persons alongiwth seized case property
and documents of this file. He prepared the site plan at the
instance of SI Ravinder Ex.PW-4/A bearing his signature at point
X. In the meantime, HC Sunil came to the spot after registration
of FIR and handed over the copy of FIR and original tehrir and
rukka to him. Then he interrogated both accused persons who
revealed their name as Irfan@Don and Galib@Painter and
formally arrested and personally searched both the accused
persons vide memos Ex.PW-2/A, PW-2/B, PW-2/C and PW-2/D
all bearing his signatures at point X. He recorded disclosure
statement of both the accused persons Ex.PW-2/E and PW-2/F
both bearing his signature at point X. Thereafter, medical
examination of both the accused got conducted in the hospital
and thereafter they were put behind the bars in the PS. He
submitted the case property in the malkhana. Thereafter, he
recorded statement of witnesses. He got deposited the case
properties to FSL i.e. three sealed pullandas through HC
Santosh. On obtaining of the result of FSL, he obtained the
permission u/s 39 arms act from DCP concerned. He recorded the
statement of witnesses. On completion of investigation, he filed
charge-sheet before the concerned court. He has correctly
identified both accused persons. He has also correctly identified
one desi katta of 12 bore and two live cartridges are taken out Ex.
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P1 and one desi katta of 32 bore and three live cartridges Ex. P2.
He has correctly identified one black bag containing tools Ex. P3.
Both motorcycles were released on superdari vide suerpdarinama
Ex. P4 and Ex. P5. He has correctly identified the photographs of
the motorcycles Ex. P6.
11. During cross-examination, PW-4 admitted that the incident
spot was crowded area and surrounded by the shops. He admitted
that he did not serve any notice to join the raiding. He admitted
that he did not recorded their names and address who refused to
join the raiding party. Neither he nor any member of raiding party
gave their personal search to any independent persons. He
admitted that he did not request to the shopkeepers to join the
raiding party. He cannot tell whether any CCTV camera are
installed at the incident spot. He denied that CCTV camera are
installed at the spot and he did not deliberately secured the
CCTV footage. He denied that accused were not apprehended at
the incident spot rather they were lifted from their houses. He
admitted that no videography or photographs were taken of the
apprehension of the accused persons by any member of raiding
team. He conducted the personal search of accused persons. He
denied that accused persons are falsely implicated in this case.
He denied that nothing was recovered from the accused persons.
He denied that the case property was planted upon the accused
persons. He denied that all the paper work was done by him prior
to the incident. He denied that he was deposing falsely.
12. PW-5 HC Santosh has deposed that on 27.11.2017, he was
posted as HC at Special Staff, Central District, PS Kamla Market.
On that day he at the instance of IO/SI Rameshwar had collected
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the case property duly sealed with the seal of RK from the
MHCM(CP)/ASI Ajab Singh and deposited the same alongwith
FSL Form to FSL Rohini vide RC No. 122/21/17 dated
27.11.2017. The RC exhibited as Ex.A-7 bearing his signature at
point A. Till the case property was in his possession no tempring
was done to the case property. After depositing the case property
in the FSL Rohini, he handed over the receipt on road certificate
of the same to MHCM(CP). Thereafter, IO recorded his
statement and he was discharged.
13. Vide separate statements of the accused recorded u/s 294
CrPC, both accused persons admitted the factum of registration of
FIR No. 264/2017 PS kamla market Ex. A-1, Certificate under
section 65-B Indian Evidence Act Ex.A-2, endorsement on rukka
Ex.A-3, DD No.8 dated 04.11.2017 of Special staff, Central
District Ex.A-4. DD No.11 dated 04.11.2017 of Special staff,
Central District Ex.A-5, DD No.9 dated 05.11.2017 of Special
staff, Central District Ex.A-6, road certificate no.122/17 dated
27.11.2017 Ex.A-7, FSL result regarding two country made
pistol/ammunition dt. 31.01.2018 Ex.A-8, sanction u/s 39 arms
act by DCP dt. 03.07.2018 Ex.A-9, two motorcycles one make
TVS APPACHI bearing registration no. DL-5SBF-2800 and
other motorcycle PASSION PLUS HERO HONDA bearing
registraion no. HR-26AM-6139, both recovered from accused
persons and their identities are not disputed without admitting the
contents of the same.
14. Vide order dated 25.09.2024, PE was closed at the request
of Ld. APP for the State.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
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15. On 06.11.2024, statement of the accused u/s 313 Cr.PC was
also recorded wherein accused denied the case of the prosecution
and stated that he has been falsely implicated in the case and false
case has been registered against him.
ARGUMENTS
16. During final arguments, it was argued by Ld. APP for the
State that the case against the accused stood proved in view of
the evidence led by the prosecution. Accordingly, he argued that
accused deserved to be convicted for the offence u/s 25 Arms
Act.
17. On the other hand, the Ld. defence counsel argued that the
prosecution has failed to bring out a case against the accused,
especially in view of the fact that no independent public
witnesses were made a part of the search despite the fact that the
accused was arrested from a public place. He further argued that
no CCTV footage indicating presence of the accused and the
police official at the alleged place of incident has been placed on
record. No chance prints were also taken from the alleged weapon
of recovery. Hence, he prayed for the accused to be acquitted for
the offences u/s 25 Arms Act.
ANALYSIS
18. The accused has been charged for the offence under
Section 25 of the Arms Act, as a pistol was recovered from the
accused during the patrolling by the complainant. Under sub-
clause (1-B) of the provision, acquisition, possession or carrying
of fire arms in contravention of Section 3 of the Arms Act is an
offence. Section 3 stipulates that no person shall acquire, have in
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his possession, or carry any firearm or ammunition unless he
holds in this behalf a licence issued in accordance with the
provisions of this Act and the rules made thereunder liable to be
punished under Section 25(1B)(a) of the Arms Act.
19. Needless to mention, in criminal law, the burden of proof
on the prosecution is that of beyond reasonable doubt. The
presumption of innocence of the accused has to be rebutted by
the prosecution by adducing cogent evidence that points towards
the guilt of the accused.
20. In order to sustain conviction u/s 25 of Arms Act, the
prosecution is required to prove the following ingredients:
(1) The accused was found in the possession of the pistol.
(2) The accused was carrying the same without any
licence/permit.
21. In the case such as the present one, the fact of recovery is
of utmost importance to bring home the guilt of an accused. It is
stated that while on patrolling duty, PW1 SI Ravinder Kumar
intercepted the accused persons and recovered a desi katta from
the left dub of the pant of accused Irfan and 3 live cartridges
from the right pocket of Irfan. One desi katta was recovered from
the left dub while two live cartridges were recovered from the
right pocket of accused Ghalib. It is not disputed by the
prosecution witnesses on whose testimony the prosecution seeks
to rely upon, that at the time of apprehension of the accused,
there were members of general public available at the spot from
where recovery was made, however it is both apparent and
surprising that no independent witness was made to join the
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investigation by the police.
22. The importance of joining public persons in the recovery
proceedings has time and again been emphasised by Judicial
pronouncements. At this juncture, reference is made to the
judgment of Roop Chand v. State of Haryana 1989 SCC OnLine
P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been
observed:
“4. It is well settled principle of law that the Investigating Agency
should join independent witnesses at the time of recovery of
contraband articles, if they are available and 5/2023 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.
23. 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 noted down their names and addresses etc. and
would 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 pubic is an after thought and is not worthy of credence. All
these facts taken together makes the prosecution case highly
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doubtful.”
24. Reliance is placed upon the judgement of State of Punjab
v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon’ble
Supreme Court has observed that:
“It therefore emerges that non-compliance of these provisions i.e.
Sections 100 and 165 Cr.P.C. would amount to an irregularity and
the effect of the same on the main case depends upon the facts and
circumstances of each case. Of course, in such a situation, the court
has to consider whether any prejudice has been caused to the
accused and also examine the evidence in respect of search in the
light of the fact that these provisions have not been complied with
and further consider whether the weight of evidence is in any
manner affected because of the non-compliance. It is well- settled
that the testimony of a witness is not to be doubted or discarded
merely on the ground that he happens to be an official but as a rule
of caution and depending upon the circumstances of the case, the
courts look for independent corroboration. This again depends on
question whether the official has deliberately failed to comply with
these provisions or failure was due to lack of time and opportunity to
associate some independent witnesses with the search and strictly
comply with these provisions.”
25. Burden therefore, lies on the prosecution to establish that
the association of public witnesses was not possible in the facts
and circumstances of the case. However, in the present case,
nothing in the testimony of prosecution witnesses suggests that
sincere efforts were made by them to involve independent
witnesses in the process of recovery and arrest.
26. In the present case, there was no lack of time and
opportunity to associate some independent witnesses with the
search and strictly comply with the provisions of Code of
Criminal Procedure. As per documentary evidence, the accused
persons were apprehended at 03:45 pm. The rukka Ex.A3 was
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prepared at 06:10 pm. The FIR (Ex.A1) was registered at 06.20
pm and as per the arrest memo Ex.PW2/A and Ex.PW2/B, the
accused persons were arrested at 7:15 pm. Therefore, it is clear
that the police officials were not hard pressed for time as they
remained at the spot from atleast 03:45 pm till atleast 7:15 pm.
However, despite being at the spot for about four hours, they did
not join any public person in the investigation. IO has even
admitted the presence of public witnesses at the spot and yet no
independent public witnesses, in stark violation of Section 100
(4) CrPC, were joined in the investigation at the time of alleged
recovery. IO did not even mention the names or addresses of
those persons who refused to join the recovery proceedings. No
explanation has come on record to show whether any notice was
served upon the public witnesses requiring them to join the
proceedings or to face action under Section 187, Indian Penal
code.
27. In the absence of any independent witness having been
joined in the investigation, false implication of the accused by the
police in the present case cannot be ruled out. Reliance is placed
upon the Judgment of the Hon’ble Supreme Court in case of
Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was
observed that, “the fact that no independent witness though
available, was examined and not even an explanation was sought
to be given for not examining such witness is a serious infirmity
in the prosecution case.
28. Another dent in the prosecution case is related to the seal.
It is crucial to note here that there is a major discrepancy in this
regard that the seal was not handed over to an independent
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witness after use.
29. This Court is conscious of precedent laid down by Hon’ble
Delhi High Court in Safiullah v. State 1993 (1) RCR
(CRIMINAL) 622, that:
“The seals after use were kept by the police officials themselves.
Therefore the possibility of tampering with the contents of the sealed
parcel cannot be ruled out. It was very essential for the prosecution
to have established from stage to stage the fact that the sample was
not tampered with. ….. Once a doubt is created in the preservation of
the sample the benefit of the same should go to the accused.”
30. Coming to the factual matrix of the present case, the
recovery witnesses namely PW-2, PW-3 and PW-4 have deposed
in their examination-in-chief that PW-1 had seized and sealed the
case property at the spot in a white pullanda with the seal of RK.
However it has been placed on record that the seal was handed
over to PW2 after use.Hence, The seal remained with the
material prosecution witness, who was already interested in the
case of the prosecution and not handed over to an independent
witness nor deposited in malkhana. No explanation has come on
record as to why the seal was not handed over to an independent
witness or deposited in malkhana.
31. In such a factual backdrop, the seal remained with the
police officials of the same police station and therefore, the
possibility of tampering with the case property cannot be ruled
out. Moreover, it is not even the case of the prosecution that the
seal was not within the reach of the said witness and thus, there
was no scope of tampering of case property.
32. In this regard, judgment in a case titled as Ramji Singh Vs.
State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be
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adverted to, wherein it was observed in paragraph 7 that:
“…The very purpose of giving a seal to an independent person is to
avoid tampering of the case property. It is well settled that till the
case property is not dispatched to the forensic science laboratory, the
seal should not be available to the prosecuting agency and in the
absence of such a safeguard the possibility of seal, contraband and
the samples being tampered with cannot be ruled out.”
33. It is also pertinent to mention that no chance print was
taken from the cartridges and the countrymade pistols to attribute
it with the possession of the accused persons. No CCTV footage
or CDR is also on record to fortify the claims of the prosecution.
No photographs of the accused has been taken at the time of
recovery.
34. All the lapses in investigation create doubt on the recovery
of the case property from the possession of the accused, which is
the essential ingredient of the offence under Sec. 25 Arms Act.
CONCLUSION –
35. To recapitulate the above discussion, to bring home the
guilt of the accused, the prosecution was required to prove the
offence under Section 25 Arms Act beyond reasonable doubt.
The accused has been successful in pointing out the deficiencies
in the case of the prosecution. The recovery of the illicit arm
from the possession of the accused is highly doubtful, owing to
various circumstances discussed above. The evidence of police
witnesses is not reliable and no independent witnesses were
joined, despite abundant availability. Inconsistencies and
deficiencies in the version of the prosecution have crumbled the
whole case of the prosecution.
36. Resultantly, accused Irfan @ Don S/o Jalil Ahmad and
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Galib @ Painter s/o Sh. Makbool Ahmad is entitled for benefit of
reasonable doubt and is hereby found not guilty. The accused
persons are hereby acquitted of the offence under Section 25
Arms Act.
Digitally signed by SAYESHA SAYESHA CHADHA Announced in open court Date: CHADHA 2025.02.17 17:17:19 in the presence of accused. +0530 (SAYESHA CHADHA) JUDICIAL MAGISTRATE FIRST CLASS-08, Central District, Tis Hazari Courts/Delhi
[This judgment contains 26 pages and each page bears the initials
of undersigned and the last page bears the complete sign of
undersigned.]
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