Delhi District Court
State vs . Vipin Kumar on 21 July, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. VIPIN KUMAR
FIR No. 184/1999
PS: MOTI NAGAR
U/S: 7/10/55 OF ESSENTIAL COMMODITIES ACT
JUDGMENT
Sr. no. of the case : 577/2/10
Unique Case ID no. : 02401R0159942002
Date of commission of offence : 18.03.1999
Date of institution of the case : 23.10.1999
Name of the complainant : Sh. O.P. Sachdeva
Name of accused and address : Vipin Kumar
S/o Bishambhar Dutt
R/o 1B/30, Ramesh Nagar,
Delhi.
Offence complained of or proved : U/s 7/10/55 of E.C. Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 09.07.2015
Date of judgment : 21.07.2015
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. Brief facts of the case are that on 18.03.1999 at 03:00 PM at B-32, Sudershan Park, New Delhi, a raid/inspection was conducted by officials of the Office of Commissioner of Industries led by Deputy Director O.P. Sachdeva. At that address the accused was running a factory in the name and style "Laxmi Trading Company". At that factory 5 boxes of bulbs 100 pieces each were found. All the boxes were FIR No. 184/1999, PS Moti Nagar Page 1/12 containing bulbs of different watt i.e. 25 W, 40 W, 60 W, 100 W, 200 W. The bulbs were not bearing the Standard Mark of Bureau of Indian Standards i.e. "ISI Mark". It is alleged that the bulbs were kept for sale.
Since the accused was a manufacturer within the meaning of Clause 2
(e) of General Service Electric Lamps (Quality Control) order 1989 (hereinafter called "the Order") and violated the Clause 3 (a) and Clause 4 of the said order which is punishable U/s 7 of Essential Commodities Act. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. The prima facie case U/s 7/10/55 of Essential Commodities Act was found to be made out against the accused. Accordingly, charge framed against the accused. The accusation was read over and explained to accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses:-
4. PW1 P.S. Verma stated that on 18.03.1999 he was posted as JTA on QMS Branch of Commissioner of Industries and on that day he alongwith O.P. Sachdeva, Deputy Director, A.K. Rajvanshi, JTA, K. Manoj Kumar JTA and P.K. Khera, JTA, N.K. Abraham reached at M/s Laxmi Trading Company at B-312, Sudershan Park, New Delhi at about 03:00 PM. It is stated by him that one person namely Aggarwal was also accompanied them from the association and they found manufacturing of electric bulbs in the above said company without any BIS Mark. It is stated that they found five box containing 100 bulbs in each box. It is stated that three boxes were sealed and accused being the proprietor of the above said firm was also present and one box was left at the company. It is stated that two boxes were brought to their office, out of which one was deposited in PS and one was kept in their office. It is stated that the bulbs were having brand name of Ram Lakhan 100 Watts 250 V, Coiled-Coil, India, Industrial Lamp, MRP 25 FIR No. 184/1999, PS Moti Nagar Page 2/12 Watt Rs.10.60/-, 40 Watt Rs.10.60/-, 60 Watt Rs.10.60/-, 100 Watt Rs. 11.10/-, 200 Watt Rs.20/-. It is stated that the above said articles were not having BIS Mark, which is compulsory for manufacturing, sale, distribute and trading under Quality Control Order, 1989, Orders name is General Service Electric Lamps (QC Order 1989). It is further stated that if these things are not found then they lodge complaint against the defaulter. This witness correctly identified the case property as brought by the MHC(M). In the case property there was one box bearing seal of appropriate authority and case no.184/99 and a paper slip having rubber stamp seal affixed on the said paper slip of office of Commissioner of Industries pasted on the said box mentioning the date, company name, address, time and name of the team members and the name of proprietor Vipin Kumar and their signatures. The paper slip also contained signatures of PW1 P.S. Verma at serial no.5. The box was containing 100 bulbs. The bulbs wrapper mentioned "Ram Lakhan" & details like MRP. The bulbs were having the mark of coiled coil 100 Watt, Ram Lakhan 250V India. The BIS Mark and CML number was not mentioned on the bulbs. Another box produced by the MHC(M). The same is bearing seal of appropriate authority and a paper slip having rubber stamp seal affixed on the said paper slip of office of Commissioner of Industries pasted on the said box mentioning the date, company name, address, time and name of the team members and the name of proprietor Vipin Kumar and their signatures. The paper slip also contained signatures of PW1 P.S. Verma at serial no.4. The box was containing 100 bulbs. The bulbs wrapper mention "Ram Lakhan" & details like MRP. The bulbs were having the mark of coiled coil 100 watt, Ram Lakhan 250V India. The BIS Mark and CML number was not mentioned on the bulbs. In his cross-examination, it is accepted by him that entire lot of bulbs lying in the premises were not bearing ISI Mark. It is accepted by him that "ISI" cannot be marked on a product till the licence is granted by the department. It is accepted by him that a manufacturing unit has to deposit the samples manufactured in their unit itself for obtaining the licence. It is stated by him that FIR No. 184/1999, PS Moti Nagar Page 3/12 accused has not disclosed to them that he had applied for the licence with BIS. It is stated by him that accused had also not produced the receipt of testing charges (of the samples). It is accepted by him that Ex.PW1/DA is the statement of the accused recorded at the time of raid. After going through the statement, it is admitted by this witness that accused has produced all the aforesaid documents and even supplied copies to them. It is stated by this witness that he had also seen the copy of the licence issued by BIS dated 07.04.1999 to the accused. Copy of the same is Ex.PW1/DB. It is stated by him that if at the time of raid the accused was holding the licence then the offence under the Essential Commodities Act would not have been made out. It is stated by him that at the time of raid, no customer, no bill book was found at the spot. This witness could not remember if any worker was found in the premises or not. It is accepted by him that at the time of raid, no manufacturing was going on.
5. PW2 P.K. Khera also deposed on the same line as deposed by PW1. In his cross-examination, it is stated by him that they did not find any evidence of sale of the bulbs. It is stated by him that at the time of their visit manufacturing process was going on. However, it is stated by him that they have not mentioned the factum of manufacturing process going on in any of the document.
6. PW3 O.P. Sachdeva, Deputy Director of QMS Branch of Commissioner of Industries also deposed on the same line as deposed by PW1. It is to be noted that this witness no where stated that he was authorized to conduct the inspection, search or seizure as per rules.
7. PW4 W/SI Raj Bala was working as DO on 25.08.199 and she exhibited copy of FIR as Ex.PW4/A (OSR) and endorsement on the rukka as Ex.PW4/B.
8. PW5 A.K. Rajvanshi also deposed on the same line as deposed by PW1. In his cross-examination, it is accepted by him that at the time of raid accused had told them that he had already applied for licence. It is accepted by him that accused had shown the receipt/ acknowledgment of the deposit of sample for the purpose of licence which was deposited FIR No. 184/1999, PS Moti Nagar Page 4/12 at Sahibabad office of BIS. It is also accepted by him that licence was issued in favour of the accused on 07.04.1999. It is accepted by him that no manufacturing job was being carried out at the spot. It is accepted by him that there was no customer/bill book/cash book at the spot. In his re-examination by Ld. APP for State, it is stated by him that for the purpose of testing 100 pieces of bulbs in a given sample are required. It is stated by him that 10 bulbs are required for testing of each and every denomination of watts.
9. PW6 K. Manoj also deposed on the same line as deposed by PW1.
10. PW7 Abraham N.K. also deposed on the same line as deposed by PW1.
11. PW8 Gulshan Rai stated that he has retired from the post of Deputy Director General Training from "Bureau of Indian Standards" in the month of February, 2005. He was cross-examined by Ld. APP after taking permission from the Court. During cross-examination by Ld. APP, witness has seen copy of letter Mark X1 and stated that on perusal of the same it seems that an application was received in their office of "Bureau of Indian Standards" for certification in respect with GLS Lamps. He accepted that a letter Mark X-1 was issued to M/s Laxmi Trading Company regarding the application for certification. It is stated by him that he does not remember if application of Laxmi Trading Company was rejected. In his cross-examination after seeing Ex.PW1/DB it is stated by him that this letter is bearing his signature at point A. It is stated by him that the letter is regarding issuance of licence granted to M/s Laxmi Trading Company. The letter is dated 07.04.1999.
12. No other witness was remained to be examined, hence, PE was closed.
THE DEFENCE :
13. Statement of accused was recorded U/s 313 Cr.P.C, wherein he pleaded innocence and stated that he has been falsely implicated. It is stated by him that he had applied for the licence and fees for the FIR No. 184/1999, PS Moti Nagar Page 5/12 issuance of the licence was deposited. It is stated that he had also deposited the sample bulbs for testing purposes which were manufactured in his unit. The samples were required as per rules. It is stated by him that he had not indulged into any commercial activities in respect of the bulbs which were found stored in his premises. It is stated that the raid was conducted by unauthorized person. Accused opted not to lead defence evidence.
THE ARGUMENTS:
14. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 7 Essential Commodities Act is proved beyond doubt as the accused was manufacturing/storing General Service Electric Lamps (bulbs) for sale which does not confirm to the Bureau of Indian Standards.
15. On the other hand, Ld. counsel for accused has argued that the alleged raid was not conducted by authorized person and the same was in violation of the rules provided by General Service Electric Lamps (QC) Order 1989. It is pointed out by the counsel that only appropriate authority under the order can inspect, search or seize the bulbs in these cases. It is pointed out that an appropriate authority under the order cannot be an officer below the rank of director. It is further stated that in the raiding party of the present case the highest rank officer was a Deputy Director and there is no order on record to show that the power of appropriate authority might be delegated to him by any General or Special Order. It is also argued by the Ld. counsel that the bulbs were lying at the spot as the same were manufactured for the purpose of sending samples and also for resending the samples as generally "Bureau of Indian Standards" can ask the applicant to resend the sample. It is argued that there is no evidence on record to show that the bulbs were manufactured for the purpose of sale. On these ground it is argued by Ld. defence counsel that accused deserves to be acquitted in the present case.
FIR No. 184/1999, PS Moti Nagar Page 6/12THE FINDINGS:
Offence U/s 7 Essential Commodities Act read with Paragraph 3 of General Service Electric Lamp Quality Control 1989:
16. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
17. Relevant provisions of law applicable in the present case are as under:-
i). As per paragraph 2 (a) of the Order, an appropriate authority means any officer not below the rank of Director in the Department of Industrial Development of Civil Supplies of Director, Industries of the State Government of any other officer or equivalent rank appointed by the Central of the State Govt. or by the Bureau of Indian Standards to implement the provisions of this order.
ii) As per paragraph 3 (a) of the Order, no person shall by himself or by any other person on his behalf manufacture or store for sale, sell of distribute any general service electric lamp which do not conform to the Bureau. Provided that nothing in this Order shall apply in relation to export of general service electric lamps to any specification required by the foreign buyer and such buyers specification shall not in any case be less than the specified standard.
iii) As per paragraph 6 (c) of the Order, the appropriate authority may with a view to securing compliance with this order cause an office authorized under paragraph (8) to enter and search any premises and seize any general service that contravention of this Order has been committed or the said general service electric lamp is not of the specified standard.
iv) As per paragraph 8 of the Order, the Appropriate Authority may by general or special order in writing authorize an officer to exercise on the behalf all or any of its functions under this Order provided that no officer who is not of a gazetted rank, and in the case of the Bureau who is not of rank equivalent to gazetted officer, shall be authorized by the appropriate Authority to exercise the power of search and seizure under FIR No. 184/1999, PS Moti Nagar Page 7/12 clause (c) of paragraph 6.
18. In the present case the factum of raid and recovery of 500 bulbs from the business premises of the accused are not disputed. The first defence raised on behalf of the accused is that the inspection/ search and seizure was not conducted by any authorized officer and the same was not in terms of the paragraph provided in Clause (c) of para 6 of the Order. It is admitted position of law that only the appropriate authority can enter and search any premises and seize any general service electric lamp in respect of which it has reason to believe that contravention of this order has been committed. Further, this inspection, search and seizure can also be done by any other person not below the rank of gazetted officer who has been authorized by appropriate authority by general or special order in writing.
19. In the case in hand the highest rank officer in the raiding party was PW3 Sh. O.P. Sachdeva who was Deputy Director in the office of the Commissioner of Industries. Admittedly as per "the Order" an appropriate authority means an officer not below the rank of director. Thus, Sh. O.P. Sachdeva being Deputy Director was not the appropriate authority as per "the Order". Further, no general or special order in writing has been filed on record to show that the powers of appropriate authority were delegated to Sh. O.P. Sachdeva. In fact Sh. O.P. Sachdeva not even claimed in the complaint or in his statement before Court that he is the appropriate authority or powers of appropriate authority have been delegated to him. Further, no reason has been stated either in the complaint or in the evidence to show that prior to conducting the raid the raiding party has reasons to believe that contravention of this order has been committed. Thus, the raid conducted by the raiding party was not in accordance with law. Since by the exercise of power conferred by para 6 (c) a serious invasion is made upon the rights, privacy and freedom of a person, it must necessarily be exercised strictly and in conformity with the dictates of law and only by one who is authorized by law to so exercise. It is not a case of error of judgment on the part of the official concerned. It is also FIR No. 184/1999, PS Moti Nagar Page 8/12 not a case of irregularity in the course of entry, search and seizure committed by an officer acting otherwise in pursuance of the authorization. It is a case where the officer acted sans authority. He exercised power which was not there. And he exercised it when even the conditions for its exercise were not satisfied. Thus, the entire inspection, search and seizure proceedings have been vitiated. Reliance in this respect being placed on a case decided by Hon'ble High Court of Delhi which was in respect of violation of Delhi Kerosene Oil (Export & Price) Control Order 1962, Clause 9 (c) of that order is similar to para 6 (c) of the present order. The case was titled as "Raj Kumar Gupta Vs. State" 1994 JCC 466 wherein it was held by Hon'ble High Court that:-
"As would be brone out from a bare reading of Clause 9
(c) of the Order it is only the Commissioner or an officer authorized by him in writing who can affect search or seizure and that too only when he suspects some infraction of the Order. The language of the Clause clearly spells out the intention and it is to ensure that the officers charged with the duty of conducting searches, conduct them properly and do no harm or wrong to dealers, licenses etc. In the instant case the Inspectors who searched the place and seized the record have no where claimed either in their complaint to the Station House Officer or in their statements before the Court, the vesting of authority on them or the existence of any ground on the basis of which they suspected violation of any condition or Clause of the Order".
20. Similarly, in Suresh Kumar Vs. State of Haryana, 1997 (3) CC Cases 478 (HC), Hon'ble Punjab & Haryana High Court observed that:
" ... Settled position of law is that a police officer of the rank of Sub Inspector is not authorized and notified person under the Order and consequently could not FIR No. 184/1999, PS Moti Nagar Page 9/12 have exercised the power of entry, search and seizure and certainly under Clause 7 of the Order the power of entry, search and seizure and certainly under Clause 7 of the Order the power of entry, seizure, search and investigation of the case do not vest in Sub Inspector of Police who was not authorized by the State Government and notified by the Central government. No fruitful purpose would be served in directing the petition to stand the complete trial. This is the matter which goes to the root of the prosecution and as a fact it has not been disputed in the reply and even during the course of arguments by the learned counsel for the State. I find it a fit case where the charge should be quashed....".
21. On the basis of above stated discussion and landmark judgments it can be safely held that the Deputy Director has failed to prove his authority to conduct the inspection, search and seizure as per paragraph 6 (c) of the oder. Further he has not stated the grounds on the basis of which they suspected any violation of condition or Clause of the order. Thus, the inspection proceedings in the present case are vitiated. This is the matter which goes to the root of the prosecution. The case as against the accused is on the basis of an inspection, which itself is against the provisions of law. Hence, the prosecution is not as per law. The accused is entitled to be acquitted on this ground alone.
22. Further as per paragraph 3 Clause (a) of the order, manufacturing or storage of general service electric lamps (bulbs) perse is not an offence. The same is an offence only if the manufacturing or storage is for the purpose of sale and the bulbs do not confirm to the Bureau of Indian Standards. In the present case accused has taken a defence that he has already applied to the Bureau of Indian Standards for grant of licence to manufacture and sell the bulbs. It is also stated by him that though the sample for testing has already been collected from his enterprises. However, the "Bureau of Indian Standards" has not replied till date whether the application for licence of the accused was allowed FIR No. 184/1999, PS Moti Nagar Page 10/12 or dismissed. It is further argued on behalf of the accused that these lamps which were allegedly recovered in the present case were in fact manufactured as sometimes "Bureau of Indian Standards" may call for resubmission of the samples. It is also accepted by the members of raiding party i.e. PW1, PW3, PW5, PW6 and PW7 that at the time of the raid in question, no customer was present at the spot to purchase the bulbs, it is also accepted that there were no bill book or cash memo seized from the spot to show that accused was indulged in selling of the bulbs. It is also accepted by them that accused has apprised them that he has applied for a licence with "Bureau of Indian Standards". He has also shown receipt/acknowledgment of the deposit of samples which is on record as Ex.PW1/DA. In fact the accused was granted licence by "Bureau of Indian Standards" on 07.04.1999. The licence has been exhibited on record as PW1/DB. PW8 Gulshan Rai who was the Retired Deputy Director General from "Bureau of Indian Standards" identified his signatures on the licence Ex.PW1/DB. It was stated by PW5 Sh. A.K. Rajvanshi that for the purpose of getting licence from "Bureau of Indian Standards", the applicant has to deposit the samples manufactured at his unit for the purpose of testing. It is also stated that for the purpose of testing 100 bulbs of each watt for which ISI licence has been applied has to be deposited as samples. In these circumstances when the accused has already applied for licence with "Bureau of Indian Standards" and was eventually granted licence only after 20 days after the raid. It is quite possible that accused had manufactured these bulbs alongwith other bulbs to be sent to the "Bureau of Indian Standards" for testing as it is not possible that a person would manufacture the exact number of bulbs which are required to be deposited for the purpose of testing. Thus the defence of the accused that the bulbs recovered from his business premises were not manufactured or stored for the purpose of sale appears to be probable.
23. At this stage it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its FIR No. 184/1999, PS Moti Nagar Page 11/12 case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
24. Thus, in the considered view of this Court, the prosecution could not prove beyond reasonable doubt that accused had manufactured/ stored the bulbs for the purpose of selling the same. Further, the inspection, search and seizure on the basis of which present case has been filed is bad in law being in violation of the set provisions of law. Therefore, the accused Vipin Kumar S/o Sh. Bishambhar Dutt is hereby acquitted of all the charges in the present case.
25. Accused has already furnished fresh bail/surety bond in terms of Section 437-A Cr.P.C. The same has been accepted.
26. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 21.07.2015 MM-04 (WEST)/DELHI
Containing 12 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 184/1999, PS Moti Nagar Page 12/12