N.D.M.C. vs Neeraj Prakash and Another

Pradeep Nandrajog, J.—Pursuant to the warrants issued on 10.8.2007 the accused is present in court along with Counsel as noted above.

At the outset it may be noted that the record of the learned Metropolitan Magistrate is not traceable in the record room (criminal) Tis Hazari as per letter dated 10.8.1992 addressed by Sh. M.L. Mehta, then Metropolitan Magistrate, New Delhi. Unfortunately, Learned Counsel for the parties also do not have the record of the trial. The position therefore would be that matter would have to be considered with reference to the impugned order of acquittal.

I have heard Learned Counsel for the parties. Within the constraints noted herein above i.e. non availability of the testimony of the witnesses, it is but apparent that matter has to be considered on the fulcrum whether the appreciation of evidence by the learned Trial Judge, as reproduced in the order suffers from a patent illegality or an irregularity.

Misdirected approach or reference of testimony of a particular witness viz-a-viz the other cannot be resorted to for the reason testimony of the witnesses is not available.

For purposes of this order, reproduction of facts and testimony of the witnesses as recorded in the impugned order has been treated as a correct narration of the testimony of the witnesses.

Neeraj Prakash was charged with the offence of preventing the food inspector from taking a milk sample on 14.5.1974. Time being 6:30 P.M.

Prosecution alleged that on the date in question, at 6:30 P.M., food inspector S.C. Bhalla examined as PW-2 accompanied by Chief Food Inspector R.K. Bhanot examined PW-6 and another food inspector R.C. Kapoor examined as PW-5 and one Inder Singh examined as PW-7 reached terrace restaurant on the 10th Floor, Mayur Bhawan, Connaught Place which was being run by Neeraj Prakash. S.C. Bhalla disclosed his identity and went to the kitchen of the restaurant where about 8 kg of boiled milk was found stored in an aluminium vessel (Patila). It was being used for preparation of tea and coffee to be served to the customers in the dining hall of the restaurant. On enquiry, Neeraj Prakash informed S.C. Bhalla that the milk was toned milk and was being used for preparing tea and coffee. S.C. Bhalla expressed his intention to purchase a sample of the milk for analysis. Neeraj Prakash became furious and shouted "Mujhe Maar Doghey kya phir sample laney aa gayae ho, Mujhe nahin dena hai Sample".

So stating, Neeraj Prakash shouted at his workers to close down the restaurant. On hearing shouts of Neeraj Prakash some customers and staff members entered the kitchen from the dining hall. Neeraj Prakash pushed S.C. Bhalla and threw the vessel containing the milk on the floor. The vessel was picked up and seized as per seizure memo. The food inspector requested the customers who had gathered to be a witness. One Dina Nath Bhatia PW-4 agreed to be a witness. PW-7 Inder Singh soaked the split milk in a piece of cloth and sealed the same. It was seized thereafter.

The prosecution examined the entire raiding party as witnesses as also Dina Nath Bhatia. All supported the case of the prosecution.

In defence, Neeraj Prakash examined O.P. Chopra, B.K. Gupta, A.K. Srivastava and Raman Kumar as DW-1, DW-2, DW-3 & DW-4. DW-1, Assistant Delhi High Court proved record of Writ No. 794/74 which evidences that the premises wherefrom restaurant was being run was licenses by NDMC to Neeraj Prakash and there was a dispute pertaining to his right to continue to occupy the licensed premises. DW-3, Clerk from the Delhi High Court proved the exhibits DW-3/1-30 being record of Writ No. 794/74 which included the stated communication by Neeraj Prakash to NDMC that he had closed the restaurant on 28.8.1973 pursuant to a direction issued by the Medical Health Officer on 20.8.1973 to close down the restaurant as Municipal Health License was not issued.

Appreciating the testimony of the witnesses of the prosecution, learned Trial Judge has held it to be a case of a motivated implication. Reason for so holding is that all witnesses of the prosecution have deposed ''like parrots''.

Learned Trial Judge has specifically adverted to the testimony of PW-4 and has noted that he could not be labeled as an independent witness for the reason in cross examination he admitted that his brother was an employee of NDMC. The zeal of this witness to implicate Neeraj Prakash has been highlighted by the learned Metropolitan Magistrate with reference to the fact that PW-1 to PW-3 and PW-5 to PW-7 categorically stated that public witnesses entered the kitchen when altercation had taken place in the manner noted in para 7 herein above, but PW-4 deposed pari materia as if even he had witnessed the altercation. Conclusion arrived at is that since PW-4 has gone to the extent of supporting the case of the prosecution with reference to a part of the incident which he had not witnessed, it establishes that he was an interested witness.

Another factor noted by the learned Metropolitan Magistrate is that being an employee of ISI, PW-4 had chosen to taken leave on the day when he was examined as a witness of the prosecution, meaning thereby PW-4 was enthusiastically participating in the case of the prosecution.

Ignoring the last circumstance noted by the learned Judge, namely PW-4 availing leave to appear in court when he was examined as a witness, the other 2 reasons recorded by the learned Metropolitan Magistrate are prima facie sound reasons.

It is indeed unexplainable as to how D.N. Bhatia could depose to facts which took place in his absence. Of course, except on the premise that D.N. Bhatia parroted what was desired by the prosecution to be parroted.

I note that the incident relates to the year 1974. The order of acquittal is dated 11.2.1985. I am dealing with the matter in the year 2007. This Court as also Learned Counsel are handicapped on account of the fact that Trial Court Record is misplaced. Neither Counsel has the testimony of the witnesses with them.

Under the circumstances, the appeal is dismissed.