Delhi District Court
Smt. Sushila Rani vs The State (C.B.I.) on 5 June, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 (NORTH EAST):
KARKARDOOMA COURTS, DELHI
CR No.04/2013
Smt. Sushila Rani, W/o Sh. Azad Singh,
R/o NS23, Mian Wali Nagar,
Paschim Vihar, New Delhi - 110087. .....Petitioner.
V E R S U S
1. The State (C.B.I.) .....Respondent.
:J U D G M E N T:
1. Aggrieved by the order dated 07.01.2013, passed by the than Ld. ACMM (NE), Karkardooma Courts, Delhi in the case bearing FIR No.RC0722010(E)0004/2010 PS CBI EOUIII, New Delhi U/s 3 & 7 of Essential Commodities Act, 1955 titled as "CBI Vs. Praveen Garg & Ors., whereby charges were directed to be framed against all the three accused persons before the Trial Court (including the revisionist herein) U/s 3 & 7 of Essential Commodities Act r/w Sec.120B IPC and the charge dated 11.01.2013 subsequently framed accordingly, the revisionist has preferred the instant revision petition on 15.02.2013 interalia praying for setting aside the impugned order dated 07.01.2013 and the charged dated 11.01.2013 framed against her.
2. Briefly stated, the factual matrix of the case necessary for the disposal of the instant petition (as recorded by Ld. Trial Court) are that "a surprise team consisting of Officers/Officials of CBI alongwith officers of M/s Bharat Petroleum Corporation Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.1 of pages 12 Ltd., upon receipt of reliable information, conducted a surprise check on 12.05.2010 at premises of M/s Lakra Oil Trading Company at Site No.1, Block 8, Geeta Colony, Delhi. The joint surprise check team in presence of independent witness found that above premises is being used for the storage of Petroleum Products and other chemicals used for adulteration of petroleum products. The following petroleum products/items were found in the aforesaid premises:
(i). Kerosene Oil Approx. 5,000 Ltrs.
(ii). Light Diesel Oil (LDO) 20,000 Ltrs.
(iii). CBS Haldia 30,000 Ltrs.
(iv). High Speed Diesel (HSD) 5,000 Ltrs.
(v). Kerosene Bleached 1,500 Ltrs.
(vi). Hydrogen Peroxide 50 Ltrs.
(vii). Unknown Chemical 50 Ltrs.
(viii). Bleaching Powder 2 Bags
(ix). Barrels containing Diesel 8 Nos.
(x). Barrels containing Black oil 22 Nos.
(xi). Barrels containing Kerosene 2 Nos.
(xii). Empty barrels 21 Nos.
Samples of the above products were collected by Sh. K.G. Ghatwal, Sr. Manager (Quality Control Cell) North, BPCL, Sector5, Noida. During investigation, accused Praveen Garg was arrested on 13.05.2010 and upon his interrogation it transpired that Smt. Sushila Rani was the proprietor of M/s Lakra Oil Trading Company for carrying out dealership of BPCL Product namely Light Diesel Oil (LDO) and Mineral Turpentine Oil (MTO). It was also revealed that M/s Lakra Oil Trading Company was having license of BPCL for procurement of Kerosene Oil for onward supply to Ration Depot Holders under the PDS. Accused Praveen Garg took over the business of M/s Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.2 of pages 12 Lakra Oil Trading Company in or around the year 2006 from its Proprietor Sushila Rani and Sushila authorized Mukesh Goel in this regard, whereas accused Praveen Garg used to pay lump sum amount of Rs.15,000/ p.m to Sushila Rani (revisionist herein) and this was done without the permission from BPCL. During the course of further investigation, it was revealed that as per sample test report dated 20.05.2010, the samples of products seized during joint surprise check on 12.05.2010, failed to meet the standard specification of product. Samples of the kerosene oil failed to meet the colour specification and confirmed the presence of fine brownish particles showing that same was treated with some chemical. It was alleged that at the premises of M/s Lakra Trading Oil Company adulteration of petroleum product was being carried out, whereas M/s Lakra Trading Oil Company was authorized agent of BPCL for collecting kerosene oil for onward supplies for KODs (Kerosene Oil Depot) and as per the norms/practice no agent of BPCL including M/s Lakra Trading Oil Company was supposed to store/decant kerosene oil at any place before giving delivery to KODs and it had to submit acknowledgment/compliance report regarding delivery to KODs within 36 hours. There was no permission for parallel marketing of kerosene oil by M/s Lakra Trading Oil Company except through KODs. Investigation revealed that in violation of agency agreement, kerosene oil meant for KODs were being brought to tankers of M/s Lakra Trading Oil Company and unloaded there. Thereafter, blue coloured kerosene oil was first treated hydrozen peroxide and one black chemical and when colour of the blue kerosene oil turned into light brown, it further treated with bleaching powder to make it colorless kerosene oil for the purpose of adulteration. Investigation revealed that tankers of diesels and LDOs used to Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.3 of pages 12 be brought to the premises of M/s Lakra Trading Oil Company at the instance of accused Praveen Garg and thereafter, one chamber of about 300 liters used to be used for unloading and that chamber used to be filled with colourless kerosene oil. This fact was revealed by the employees of M/s Lakra Trading Oil Company. In such manner blue died kerosene oil which was meant for public distribution system, was being decoloured with the help of bleaching powder and other chemicals for the purpose of mixing it with standard petroleum products and M/s Lakra Trading Oil Company was unauthorizedly storing the petroleum products. It further came in light that in fact distributorship was allotted in the name of accused Smt. Sushila Rani under the dealership agreement dated 25.01.90 between M/s Bharat Petroleum Corporation Ltd. and accused Smt. Sushila Rani being Proprietor of M/s Lakra Trading Oil Company and this dealership was for SKO (Superior Kerosene Oil) which is a subsidies product and for light diesel oil for supplies to different KODs and during 01.01.10 to 15.05.10 M/s Lakra Trading Oil Company was having 18 KODs attached to it. During investigation accused Sushila Rani had stated that she is proprietor of M/s Lakra Trading Oil Company, however, the business affair of said firm was handed over to accused Praveen Garg and as desired by Praveen Garg a General Power of Attorney was executed in favour of Mukesh Goyal, as such accused Sushila Rani was claiming that she was not looking after the business of M/s Lakra Trading Oil Company yet she was actively involved in the affairs of said firm with Praveen Garg and Mukesh Goyal. The clause 22 of the above said dealership agreement dated 25.01.90, a dealer can not without the consent in writing can assign or transfer in any manner the contract to any other person and as per clause 15 Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.4 of pages 12 dealer was made responsible for passing of or any contravention of law. Besides this as per the Marketing Discipline Guidelines 2005 issued by Ministry of Petroleum and Natural Gas, under para 1.5(III) of those guidelines no dealer is supposed to buy, sell or exchange any petroleum product with any other dealer or any body other than principal oil company. Para 6.1.7 deals with unauthorized purchase/sell/exchange of MS HSD. It was also come into light that many purchasers were in dealing with accused Mukesh Goyal and Praveen Garg for carrying out the supply of furnace oil or other petroleum product from the premises of M/s Lakra Trading Oil Company as such there was a violation of "Motor Spirit and High Speed Diesel Regulation of Supply (Distribution and Prevention of Malpractice) Order 2005" and Sec.3 read with Sec.4 of "Kerosene (Restriction and Use and Fixation of Ceiling Price) Order 1993" and "Delhi Kerosene Oil (Export and Prize) Control Order 1962" and thereby they committed the offence U/s 3 & 7 of EC ACt r/w Sec.120 B IPC. The revisionist is assailing the impugned order dated 07.01.2013 and the charge framed on 11.01.2013 on the following grounds:
1. The impugned order is wholly erroneous and deserves to be quashed.
2. It has not been appreciated that as per the case of prosecution itself, the petitioner Smt. Sushila Rani was not present on the date of checking i.e. 12.05.2010, when the alleged adulterated petroleum products were found at the premises of M/s Lakra Oil Trading Company located at Site No. Block B8, Geeta Colony, Delhi. This fact is consistent with the innocence of revisionist.
Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.5 of pages 12
3. It is also not appreciated that at the time of aforesaid checking the prosecution witnesses namely Sh. Suraj, Sh. Virender Singh and Sh. Giri Raj Kumar, who were employed at the aforesaid premises were found present and they informed that they were working for Sh. Praveen Garg R/o326, East Punjabi Bagh, New Delhi. The detailed statements of aforesaid witnesses were recorded by the IO U/s 161 Cr.P.C and in the aforesaid statement name of the petitioner Smt. Sushila Rani is no where mentioned and no role whatsoever has assigned to her. This piece of evidence further indicates that the revisionist has no concerned with the commission of alleged offence.
4. It is also not taken into consideration that in para no.7 of the charge sheet, it has been mentioned that Sh. Praveen Kumar Garg was arrested on 13.05.2010 and taken on police custody for custodial interrogation and it transpired that the revisionist Smt. Sushila Rani is the proprietor of M/s Lakra Oil Trading Company or in or around the year 2006, Sh. Praveen Garg took over the business of M/s Lakra Oil Trading Company from its proprietor Smt. Shushila Rani on account of her old age and it was also transpired that Sh. Mukesh Goel and Praveen Garg had agreed to take a lump sum amount of Rs.
15,000/ per month to Smt. Shushila Rani.
Further in para no.16 of the charge sheet, it has been mentioned that during investigation Smt. Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.6 of pages 12 Shushil Rani maintained that she is the proprietor of aforesaid company and the business affair of the said company had been handed over to Praveen Garg and as desired by Sh. Praveen Garg, a GPA was executed by her in favour of Sh. Mukesh Goel. She has furnished copy of GPA dated 01.08.2006 executed by her in favour of Sh. Mukesh Goel. The prosecution has placed the aforesaid GPA on record as document D40 which confirms that although Smt. Shushila Rani was proprietor of the aforesaid company but she had no concerned with the day today affair of the company and is not involved in commission of the alleged offences in any manner.
5. It is also not considered that in para no.17 of the charge sheet it is mentioned that inspection report dated 30.04.2010 was signed by Smt. Sushila Rani. The said document is D14. The perusal of the aforesaid document shows that no irregularity was found in the aforesaid date of inspection and this fact is also consistent with the innocence of the revisionist.
6. It has not been appreciated that at the most the petitioner Smt. Sushila Rani, who has transferred the aforesaid business of M/s Lakra Oil Trading Company to co accused persons Praveen Garg and Mukesh Goel can be held liable for commission of breach of the conditions of the dealership agreement dated 25.01.1990 which was executed between her and the Bharat Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.7 of pages 12 Petroleum Corporation Ltd. and the said breach of the terms of aforesaid agreement may result in the cancellation of dealership but it does not constitute a criminal offence under the Act.
7. It has not been appreciated that there is no prima facie evidence on record to suggest that the revisionist Smt. Sushila Rani has conspired with the other co accused persons to commit the alleged offences. Further there is no prima facie evidence on record that the alleged offences committed by co accused persons were in the knowledge of the petitioner at any point of time. Further there is no prima facie material on record to show that the petitioner has derived any wrongful gain from the alleged illegal activities committed by co accused persons, therefore, the revisionist can not be charged for commission of offence U/s 3 r/w Sec.7 of Essential Commodities Act with the aid of Sec. 120B IPC.
8. It has not been considered that there are no material at all for framing of charge against the revisionist and the revisionist is therefore, entitled for an order of discharge in her favour. It is well settled that the judicial process ought not to be permitted as an instrument of operation and needless harassment.
3. Copy of the petition was supplied to the State and arguments were advanced by Ld. Addl. PP for the State (CBI) on behalf of the State, whereas Sh. R.S. Malik, Ld. Counsel for the revisionist led his arguments on behalf of the revisionist.
Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.8 of pages 12
4. I have heard the respective rival submissions of both the sides. I have also perused the entire material placed on record including the Trial court record, the contents of the instant revision petition particularly the grounds taken therein.
Law in respect of the question of framing of charge is well settled.
At this preliminary stage of trial, the Court is not required to see and evaluate the evidence proposed to be led by the prosecution meticulously with an idea to find out the guilt or otherwise of the accused. At this stage, the Court is required to see only prima facie evidence and even the charge can be framed on the basis of grave suspicion. At the same time it is also well established that the Court cannot act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on.
In the celebrated judgment of the Hon'ble Supreme Court reported as AIR 1979 SC 366 titled as Union of India Vs. Prafulla Kumar Samal and Another it was held that, "the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out. In para 10 of the judgment, the Court further observed: (1).That the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.9 of pages 12 (2).Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(3).The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4).That in exercising his jurisdiction under Section 227 of the Code of Judge which under the present Code is a senior and experienced Court cannot act merely as a PostOffice or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In 1994 (1) C.C. Cases 578 (HC) titled as Bhim Singh Vs. State, it was held that, "The stage of framing of charges is an important stage in the criminal trial and the Judge concerned has to carefully evaluate and consider the entire available material on record and he must judiciously apply his mind. Framing of charges erroneously would mean futile criminal Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.10 of pages 12 prosecution for several year. The responsibility of the Judge concerned is particularly far greater in our country because of long delay in criminal trials and final disposal of criminal cases."
5. After giving my thoughtful consideration to the respective rival submissions of both the sides I have come to the considered opinion that the instant revision petition as filed by the revisionist is liable to succeed as there is no prima facie material on record to suggest that the revisionist Smt. Sushila Rani had conspired with the other co accused persons to commit the alleged offences or that the alleged offences committed by co accused persons were in the knowledge of the revisionist at any point of time or revisionist has derived any wrongful gain from the alleged illegal activities committed by co accused persons. Further, it is the case of the prosecution itself that the revisionist Smt. Sushila Rani was not present on the date of checking i.e. 12.05.2010, when the alleged adulterated petroleum products were found at the premises of M/s Lakra Oil Trading Company located at Site No. Block B8, Geeta Colony, Delhi and at the time of aforesaid checking several persons namely Sh. Suraj, Sh. Virender Singh and Sh. Giri Raj Kumar (the employees available at the aforesaid premises) had duly informed that they were working for Sh. Praveen Garg R/o326, East Punjabi Bagh, new Delhi and in their respective statements recorded U/s 161 Cr.P.C, the name of the revisionist is no where mentioned nor any role has been attributed or assigned to her. Further in para no.7 of the charge sheet, it has been mentioned that Sh. Praveen Kumar Garg was arrested on 13.05.2010 and during his custodial interrogation, it was transpired that the revisionist Smt. Sushila Rani is the proprietor of M/s Lakra Oil Trading Company but the business affair of the said company was taken over by the accused Praveen Garg Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.11 of pages 12 and Mukesh Goel by way of a GPA dated 01.08.2006 executed by the revisionist herein in favour of accused Mukesh Goel. The said GPA has been placed on record as document D40 which confirms that although Smt. Sushila Rani was proprietor of the aforesaid company but she was not involved in the commission of the alleged offence as she had no concerned with the day today affair of the company. Though, it is true that the revisionist, who has transferred the aforesaid business of M/s Lakra Oil Trading Company to co accused persons Praveen Garg and Mukesh Goel, without the consent and permission of Bharat Petroleum Corporation Ltd. but for that she can be held liable for commission of breach of the conditions of dealership agreement dated 25.01.1990 which was executed between her and the Bharat Petroleum Corporation Ltd. and the said breach of the terms of aforesaid agreement may result in the cancellation of dealership but certainly it does not constitute a criminal offence under the Act and therefore, the revisionist can not be charged for commission of offence U/s 3 r/w Sec.7 of Essential Commodities Act with the aid of Sec.120B IPC. Resultantly, the impugned order dated 07.01.2013 and subsequently charge framed on 11.01.2013 qua the revisionist are liable to set aside and same stand set aside accordingly. The revisionist is discharged from this case. Her bail bond also stands discharged.
6. Copy of the judgment alongwith the TCR be sent to Ld. Trial Court for 02.07.2013.
7. Revision filed be consigned to Record Room after completion of necessary formalities.
(Announced in open court (RAKESH KUMAR)
th
on 05 June, 2013) Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
Smt. Sushila Rani Vs. The State (CBI) (CR No.04/2013) Page No.12 of pages 12