Delhi District Court
State vs . Deepak Nanda & Anr. on 21 December, 2019
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No. 70/02
PS Timarpur
State Vs. Deepak Nanda & Anr.
U/s 7/10/55 E.C. Act
CNR No. DLCT-02-000136/2003
CIS No.289881/16
JUDGMENT
(a) Sr. No. of the Case 289881/16 (b) Date of offence 19.02.2002 (c) Complainant Jabir Singh, Additional SHO
(d) Accused 1. Deepak Nanda S/o. Sh. Balraj Nanda, R/o.
House No. 801, Dr. Mukherjee Nagar, Delhi.
2. Anil S/o. Sayada Prasad, R/o. House No. 801, Dr. Mukherjee Nagar, Delhi.
3.Ram Chander S/o. Sh. Narayan, R/o. House No. 8-D, Dr. Mukherjee Nagar, Delhi (expired).
(e) Offence Under Section 7/10/55 E.C. Act. (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 09.10.2003 (i) Date when judgment was 21.12.2019 reserved (j) Date of judgment 21.12.2019 FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 1 of 20 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused persons Deepak Nanda and Anil for the offence U/s 7/10/55 E.C. Act.
2. It is pertinent to mention here that accused Ram Chander expired during the pendency of the present case.
3. It is the case of the prosecution that on 19.02.2002, at about 02:15 pm, at house of Ishwar Tyagi, at 192, Village, Burari, Delhi, accused persons along with Ram Chander (since expired) were found manufacturing spurious oil/lubricants by filling it into the pouches and without any license for supply in the market in violation of the notification of lubricating oils and Greases (processing, supply and distribution regulations) order, 1987 and thereby committed an offence under Section 7/10/55 E.C. Act.
COURT PROCEEDINGS
4. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Deepak Nanda and Anil.
5. Thereafter, charge under Section 7/10/55 E.C. Act was framed against the accused persons Deepak Nanda and Anil vide order dated 24.11.2015 passed by Ld. Predecessor to which he pleaded not guilty and claimed trial. However, aforesaid charge was amended vide order dated 11.10.2019 passed by Ld. Predecessor and amended charge was framed against aforesaid accused persons in the same offences.
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6. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
7. In order to prove the guilt of the accused, prosecution examined as many as 09 witnesses.
8. PW-1 is Ct. Dal Chand, who deposed that on 19.02.2002, he along with inspector Jaibir Singh, and SI Gajender Singh were on patrolling duty and when they reached at Burari Village Takia Chowk at about 2:00 pm, one secret informer met to Insp. Jaibir Singh and informed that manufacturing of spurious oil/lubricants is going on in the house of Sh. Ishwar Singh Tyagi at Burari village, that Insp. Jaibir Singh had asked four to five public persons to join the investigation, but none was agreed and left the spot without disclosing their identity, that a raiding party was prepared by Insp. Jaibir Singh and they reached at the house of Ishwar Singh Tyagi, at about 02:15 pm and conducted raid, that the shutter of said premises was opened by lifting the same and found that accused Deepak Nanda met them and introduced himself as owner, that one another person namely Ram Chander was also found there and he was mixing a red colour in the said spurious oil/lubricants, that an another person namely Anil, was also found there and he was packing the above said oil, that Insp. Jaibir Singh had asked to the accused Deepak for license of the same and accused Deepak had informed that he was not having any license for the said purpose, that two drums containing above said oil were also found there and same were checked and it were found containing said oil, that Insp. Jaibir Singh had taken out sample from both drums and it were given serial number 1 and 2, that the remaining pouch and plastic pouch (polythene bag) and 40 boxes of paper (gatta) were also sealed, that the case property and samples were sealed with the seal of JS, that the mixing machine, one keep, one kota and one plastic FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 3 of 20 dabba by which the oils were measured and packed were also sealed with the seal of JS, that the seal after its use was handed over to him, that said recovered case property were taken into possession through seizure memos Ex. PW-1/A and Ex. PW-1/B, that on 19.02.2002, IO prepared the tehrir and handed over the same to him for registration of FIR, that he went to the PS and got the FIR registered and returned back to the spot along with copy of FIR and original rukka and handed over the same to IO, that the case property was deposited in the malkhana. He admitted that all the accused namely Ram Chander, Anil and Deepak were arrested and their personal search was conducted in his presence vide memos EX.PW1/C and EX.PW1/H, that he was shown the photographs and after looking at the photographs, witness correctly identified the same, that the photographs along with Panchnama are Ex P2 (colly).
9. In the cross examination, PW-1 deposed that he along with Insp Jaibir Singh and SI Gajender left the Burari Chowki on the day of incident at about 9.30-10.00 am after making the departure entry, that they had patrolled all the area of the chowki and it took them 3-4 hours in the patrolling, that public persons were present at the Burari Chowk at that time, that some houses were situated near the house where they conducted the raid, that the owner of said premise was not present at the time of raid, that the said house was on rent, that there was hall in the ground floor and stairs were leading to the first floor, that they had not inspected the first floor, that he do not have any personal knowledge of Mobile oil and gear oil, that he do not know the permissible limit of the possession of aforesaid oils, that he do not have any idea about the grades of said oils, that accused Deepak was sitting on a chair, that there were total two drums of oil lying at the premises, that he do not know about the content of red colour liquid found in the premises, that he do not know the content of the material found in the drums, that he cannot tell about the content of pouches lying in the card board boxes, FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 4 of 20 that the drums were seized on the spot by Insp. Jaibir and the same were deposited in Malkhana, that there were 41 card board boxes and they were also deposited in Malkhana after seizure, that the drums and cardboard boxes are not visible in the photographs shown to him in the court, that the size of wooden gotta was around 1 ½ feet and it was seized by the IO and same is not visible in the photographs. He admitted that the keep and measuring instrument are easily available in market. He further deposed that both these instruments were shown in the photographs was in unsealed condition, that the IO got clicked the photographs of the spot by the private photographer, that he identified the photographs and same are Ex PW 1/D1 and Ex PW 1/D2. He admitted that there are more than two drums visible in the photographs. He further deposed that they stayed at the spot about 4-4 ½ hours, that all the personal search memos, arrest memos, two seizure memos and site plan were prepared in the handwriting of SI Gajender, that all aforesaid documents were not signed by Inspector Jaibir Singh. He admitted that the rukka was also prepared in the handwriting of SI Gajender. He denied that no adulteration being carried out at the spot, that Insp. Jaibir Singh was not present at the time of raid, that a false case was registered at the behest of Sh. Ram Kr. Rathi, SHO PS Timar Pur. He further deposed that he is not aware if, father of accused Deepak Nanda was a retired inspector of Delhi Police. He denied that he was not member of the raiding party and he had signed of documents in the police station at the behest of senior police officials.
10. PW-2 is retired SI Mohan Pratap, who deposed that on 19.02.2002, at about 06.05 pm, Ct. Dalchand met him and produced him a rukka sent by Addl. SHO Ins. Jaibeer Singh, that he registered the present FIR bearing no. 70/02 PS. Timar Pur EXPW2/A, that after registration of FIR, he also made endorsement on rukka EXPW2/B, that he handed over the copy of FIR and original rukka to Ct. Dalchand for further handing over to SI Gajender Kumar.
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11. In the cross examination, PW-2 admitted that there is overwriting at the column of time at point X in FIR EXPW2/A. He further deposed that he cannot say whether the pen with which overwriting was done at point X was having different ink, that as per record FIR No. 71/02 i.e. next FIR was registered at about 3.20 am on 20.02.2002. He denied that no rukka was brought at the date and time mentioned by him, that the FIR was ante-time and ante-dated, that he is deposing falsely.
12. PW-3 is ACP Jaiveer Singh, who deposed that on 19.02.2002, he was posted as Addl. SHO at PS. Timar Pur, that on that day, he along with SI Gajender, Ct. Daal Chand were on patrolling duty in the area of PS Timar Pur and were present at village Burari chowk, that he was informed by the secret informer that manufacturing of spurious oil is going on in the house no. 192 of Ishwar Tyagi, that he constituted a raiding party including him, SI Gajender and Ct. Daal Chand, that he requested 5-6 public persons to join the raiding party but none agreed and left the place without disclosing their names and addresses, that he along with other raiding party member entered in the house of Ishwar Tyagi at about 2.15 pm and raised the shutter of the house and found accused Deepak Nanda inside the house who claimed himself to be the owner of the unit which was manufacturing the spurious oil, that they saw one Ram Chander who was mixing the red colour substance in the spurious oil, that they also found one Anil who was packing the spurious oil in pouches, that he inquired accused Deepak regarding the license of manufacturing the oil in the unit who said that he was not having any license regarding the same, that he called the photographer on the spot and got clicked the photographs of the same, that on the pointing out of accused Deepak two drums containing golden colour oil were recovered, that out of which one litre each oil was taken out for purpose of the sample and the same was poured into separate boxes, that the drums as well as boxes were covered with the cloth and converted into pullindas, that apart from it one more drum in which red colour substance was FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 6 of 20 mixed was recovered and the oil of it were poured into one plastic cane and covered with the cloth and converted into pullinda, that the red colour which was going to be mixed in the oil was put into a glass bottle and covered with the cloth and converted into pullinda, that 41 green colour boxes(dibba) were given the serial no. 1 to 41 and out of them one was taken out as sample and covered with the cloth and converted into pullinda and rest of the dibbas were put into a plastic katta and covered with the cloth and converted into pullinda, that five kg of empty plastic bags were put into a plastic katta and covered with the cloth and converted into pullinda, that the mixing machine, one keep, one gotta, one measurement unit of one litre were recovered from the spot and were seized the same, that all the pullindas were sealed with seal of JS, that all the above mentioned articles along with pullindas were seized by seizure memo Ex.PW1/A, that he prepared a rukka and sent it through Ct. Daal chand for registration of FIR.
13. In the cross examination, PW-3 deposed that he, SI Gajender and Ct. Dal Chand had left the PS at about 12.00-12.30 noon, that he received the information on the spot during patrolling. He admitted that public persons were present at that place. He further deposed that he do not remember whether, the public person were present at the place where they conducted the raid. He admitted that he had not joined any public person in the investigation during the raid. He further deposed that he do not remember whether the owner of the said house was present or not, that he do not remember the number of floor of the said house, that he do not remember the number of rooms on the ground floor, that he do not remember whether there was any stair from the ground floor leading to the first floor, that the accused Deepak Nanda was found sitting on a gaddi, that there were two drums with their caps and one half drum in which mixing was going on, that he do not have any personal knowledge of Mobil oil and gear oil, that he do not know the permissible limit of the possession of aforesaid oils, that he do not have any idea about the FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 7 of 20 grades of said oils, that he has not gone through any Control Order in respect of the Mobil oil or gear oil, that he cannot tell the chemical composition or particular red colour chemical name of the substance which was being mixed up in the oil, that he had lifted the samples of the brown colour oil , Red colour oil and the red chemical which was found at the spot, that the next IO might have sent the samples for chemical analysis, that he is not aware of the chemical analysis report received in this case. He denied that no such chemical was found on the spot. He further deposed that the two drums and the contents of the half drum was transferred into a plastic cane which was sealed and seized along with other materials which were seized from the spot, that the gotta of wood which was found at the spot was approximately 5 feet in length, that the drums, the plastic cane and the wooden gotta is not visible in the photographs of the case property shown to the witness, that he do not remember the total number of drums on the spot, that he do not remember whether he seized all the drums found on the spot, that he is unable to recall whether he mentioned in any of the document prepared in the investigation regarding the total number of drums on the spot. He denied that he is unable to recall the material facts for the reason that he was not present on the spot at the time of alleged raid. He further deposed that he was not present at the time of arrest and personal search of the accused person, that he was present at the time of seizure of case property. He admitted that the seizure memo Ex PW 1/B does not bear his signature. He denied that he mentioned his name in the alleged raid despite the fact that he was not present as he had gone through the Control Order in the police station. He further deposed that he came to know later that father of the accused Deepak Nanda was retired Inspector of Delhi Police. He denied that he was not member of the raiding party and he had signed of documents in the police station at the behest of senior police officials, that false case was filed against accused due to ill will against the father of the accused.
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14. PW-4 is ACP Gajender Kumar, who deposed that on 19.02.2002, he was posted as SI at PS Timar Pur, that he along with Ct. Dal Chand & Inspector Jai Veer were on patrolling duty and when they reached at Burari village, Takia chowk, at about 2:00 pm, one secret informer met Inspector Jai Veer & informed about manufacturing of spurious oil/lubricant is going on in the house of Ishwar Tyagi, that inspector Jai Veer asked 4-5 passerby to join the investigation but none agreed and left the spot without disclosing their name and addresses, that Inspector Jai Veer constituted a raiding party and conducted the raid at the house of Ishwar Tyagi, that there was a godown at ground floor and the accused Deepak Nanda was found present there, that one other person namely Ram Chander was also found sitting there and mixing red colour powder in the oil, that there was one other person namely Anil who was also found sitting there and packaging the oil, that he asked accused Deepak Nanda to show the documents/license pertaining to manufacturing oil, that inspector Jai Veer called one private photographer at the spot, that Inspector Jai Veer seized two drums in which there was oil and out of which one liter of oil was taken as sample from each drum, that one drum containing mixed red colour oil was also seized & out of it one liter of oil was taken as sample purpose, that IO prepared seizure memo of above said articles except sample EXPW1/A, that the samples and another case property were sealed with the seal of JS, that after using the seal, the same was handed over to Ct. Dal Chand inspector Jai Veer prepared the tehri and handed over the same to Ct. Dal Chand for registration of FIR, that after some time, Ct. Dal Chand came back at the spot along with copy of FIR & original rukka & same was handed over to him as investigation of the case was marked to him, that he prepared site plan EXPW 4/A, that he seized empty packets & boxes found at the spot and prepared seizure memo Ex. PW1/B, that after interrogation, he arrested all the accused and conducted their personal search vide memo FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 9 of 20 EXPW1/C,D & E and Ex.PW1/G,F & H, that he recorded the statement of the witnesses, that he deposited the case property in the malkhana. He further deposed that on 20.03.2002, he intimated the food and supply department regarding the arrest and recovery articles from accused persons namely Deepak Nanda, Anil & Ram Chander, that he was transferred and he handed over the case file to MHC(M), that two photographs of the case property are shown to the witness, he correctly identified the same as Ex.P-2(Colly), that two photographs of the shop having some drums and oil equipments was shown to the witness and he correctly identified the same, that photographs are Ex.PW-1/D1 & D2, that the negatives are also Ex.P4.
15. In the cross examination, PW-4 admitted that arrest memos and personal search memos EXPW1/C,D & E and Ex.PW1/G,F & H was in his handwriting, that memo Ex.PW1/A, that Rukka is not in his handwriting. He further deposed that he was having his office at PP Burari where as Inspector Jai Veer was having his office at PS Timar Pur, that Ct. Dal Chand was posted at PP Burari & was having his office with him, that he do not remember at what time they left the PP Burari, that inspector Jai Veer come to the PP & thereafter they left for patrolling, that the information was received in village Burari, that he do not remember even approximately at what time secret information was received, that the information was not reduced into writing. He admitted that the place of raid was situated in a residential area and public persons were residing there but none was called to join the raid. He further deposed that the landlord of the premises was called but he was not present there, that other family members of landlord of the premises were not called, that he was not having any technical knowledge about the oil which was seized, that no officer from any oil company or food and supply department were called at the premises for checking the oil, that the red colour which was being added in the oil was also seized in the entire bottle, that sample FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 10 of 20 was not drawn out of it, that we remained at the spot for about four hour, that no customer came inside the shop during the time they stayed there but he is not aware if any customer visited outside the shop, that they did not find any sign board, stock register, sale register, cash memo or any other document to suggest the sale of oil, that they had not taken photographs of mixing of oil or packaging of the same, that during the time the investigation of this case remained with him, he had not sent the sample to laboratory for testing, that he did not come across any evidence to suggest adulteration during the time the investigation of this case remained with him. He voluntarily deposed that he just found accused persons mixing some red colour powder with the oil. He further deposed that he had gone through the control order pertaining to this case on the day of raid itself, that he was not aware, if father of Deepak Nanda was a retired police officer from Delhi Police. He denied that a false case was registered against the accused persons, that no raid was conducted as stated by him, that all the documents were prepared while sitting in the PS Timar Pur and signature of Inspector Jai Veer were obtained there, that there was no processing of oil being carried out, that he is deposing falsely.
16. PW-5 is ASI Rajesh Gaur, who deposed that on 28.10.2002, he was posted as Ct. at PS Timar Pur, that on that day, he was present at PS and 3-4 pullandas of case property pertaining to present FIR as particulars shown was handed over to him to deposit the same at CFSL, Hyderbad, that he left from PS after taking the above said pullandas and went to CFSL, Hyderbad vide RC No. 154/21 and deposited the same, that he came back and handed over the receipt regarding the depositing of above said pullandas at CFSL, Hyderbad to MHC(M) Timar Pur.
17. In the cross examination, PW-5 deposed that he taken out station written permission before leaving for CFSL, Hyderbad, that he had gone there by train and came back by train, that the written permission was handed FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 11 of 20 over to DO for making the departure entry, that after his return, he had not handed over the railway tickets. He voluntarily deposed that he had handed over the railway warrants. He denied that he had not gone to deposit the case property, that he is deposing falsely.
18. PW-6 is Inspector Virender Singh, who deposed that on 15.05.2002, he was posted at Chowki PP. Burari as SI, that further investigation of the present case was transferred to him, that during investigation, he visited Indian Oil offices at Dehradun and Ghaziabad but could not deposit the sample of Oil in laboratories, that on 29.10.2002, Ct. Rajesh deposited the samples at Hyderabad CFSL vide RC no. 154/21, that he recorded the statement of MHC(M) and Ct. Rajesh, that he prepared chargesheet and filed it in the Court.
19. In the cross examination, PW-6 denied that a wrong chargesheet was filed against the accused persons as no offence was committed.
20. PW-7 is Vivek Kumar Chaudhary, who deposed that he is working as Assistant Manager Law IOCL, Yusuf Sarai, New Delhi, that he is on deputation with the Ministry of Petroleum and Natural Gas and have been authorized to bring before the court the certified copy of the gazette notification issued by the Ministry of Petroleum and Natural Gas dated 20.03.1987, that he was bound down to come along with original gazette notification in part II Section 3, Sub-Section(1) of Gazette of India dated 20.03.1987 but despite the best efforts to search for the above file, it is not traceable, that he produced the copy of the said notification which is attested on the basis of the copy of Gazette notification available on MOPNG website, that the same is Ex. PW7/A, that the copy of letter dated 15.05.2018 written by under secretary of Ministry of Petroleum and Natural Gas is EX.PW7/B. FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 12 of 20
21. PW-8 is of Retired ASI Hari Prasad, who deposed that on 19.02.2002, he was posted as MHCM at PS Timar Pur, that in the evening, two oil drums, one can, one plastic can for measurement, one box for sample, and two kattas sealed with the seal of JS, one bora sealed with the seal of JS were deposited by him in the malkhana via Sl. no. 2277 in store room register (part I). He further deposed that on 15.10.2002, he handed over the four pullandas of sample with RC no. 142/21 to Ct. Rajesh Kumar for depositing the same in FSL, Hyderabad, that the same could not be deposited there and were returned back by Ct. Rajesh Kumar, that on 27.10.2002, he handed over the four pullandas of sample with RC no. 154/21 to Ct. Rajesh Kumar for depositing the same in FSL, Hyderabad, that the same was deposited there and the result was received on 23.04.2003, through Ct. Harji Ram, that he deposited the samples and handed over the result to the IO on the same day, that register no. 19 containing the aforesaid entries was produced by the, that the copy of the entry no. 2277 is Ex.PW8/A(OSR).
22. In the cross examination, PW-8 deposed that the entries in the register is in his handwriting which was done by him in one go. He admitted that the entries regarding FIR number, u/s, PS and the name of the depositor with date is in a different ink than the remaining entry, that the case property was deposited by SI Gajender Kumar. He admitted that it is not mentioned in the relevant entry that the case property was deposited in the evening. He voluntarily deposed that the time is never mentioned in the register no. 19, that the signature of Ct. Rajesh Kumar does not appear at the relevant entry. He admitted that there is no re-deposit entry of the samples brought back by Ct. Rajesh Kumar. He voluntarily deposed that they do not make any such entries. He further deposed that there is no date mentioned against entry no. 2276, that the entry number 2278 is dated 20.02.2002. He denied that no case property was deposited with him or that the entry was fabricated later on.
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23. PW-9 is S. N. Rasool, Senior Scientific Officer, who deposed that on 29.10.2002, he received three sealed plastic jars, one sealed glass bottle and one sealed cloth parcel from DCP Crime and Railways Delhi, that he started analysis on 24.01.2003 and concluded the analysis on 17.04.2003, that exhibits received by him are marked as Ex. 1 to 5. Ex. 1 is one liter of brown colour liquid, Ex. 2 is one liter of brown colour liquid, Ex. 3 one liter of red coloured liquid, Ex. P4 is red coloured liquid and Ex. 5 400 ml of red coloured liquid, that all exhibits are in sealed condition tallied with specimen provided by the forwarding authority, that all the exhibits are received through Ct. Rajesh Kumar, that the exhibits were analysed by Kinematic viscosity test, that conclude that all the five exhibits are tallied with the standard parameters of Buro of Indian Standards (BIS), that all the five exhibits are lubricant oil without any impurity or adulteration, that his report in this regard is Ex. PW9/A.
24. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
25. Statement of the accused persons Deepak Nanda and Anil under Section 313 Cr.PC was recorded vide order dated 19.12.2019 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
26. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
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27. Perusal of the record reveals that accused persons Deepak Nanda and Anil were charged with the offence under Section 7/10/55 E.C. Act.
28. Perusal of the record further reveals that accused persons were charged for manufacturing spurious oil/lubricants, however, PW-9 S.N. Rasool, Senior Scientific Officer, FSL, Hyderabad, categorically deposed that all the exhibits are lubricant oil without any impurity or adulteration. He also exhibited his report regarding the same as Ex. PW-9/A. Accordingly, as per the testimony of PW-9, case property recovered from the possession of the accused persons was not found to be adulterated so as to establish the guilt of the accused beyond reasonable doubt.
29. PW-1 deposed that drums were seized on the spot by Inspector Jaibir and same were deposited in the Malkhana, however, PW-4 deposed during his testimony that he deposited the case property in the malkhana, thereby contradicting testimony of PW-1 regarding deposition of case property in the malkhana. PW-1 further deposed that the size of wooden goota was around 1 ½ and the same was seized by the IO and the same is visible in the photograph, however, PW-3 deposed that gotta of wood which was found at the spot was found approximately 5 feet in the length, thereby contradicting testimony of each other regarding measurement of gotta of wood. PW-1 further deposed that keep and measurement instruments are easily available in the market and both of these are seen in photographs in unsealed condition, therefore, its genuinity cannot be established in such a condition. He further admitted in this cross examination that rukka was prepared in the handwriting of SI Gajender (PW-4). However, PW-4 categorically admitted that in his cross examination that rukka is not in his handwriting, thereby, contradicting testimony of PW-1 regarding preparation of rukka.
30. PW-3 deposed that he was informed by secret informer about the FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 15 of 20 manufacturing of spurious oil, which gives an inference that secret informer played an important role in initiating the proceedings and for nabbing the accused persons. However, no plausible explanation has been given for not citing and examining said secret informer as witness in order to prove the case of prosecution for the reasons best known to the investigating agency.
31. PW-3 further admmitted that public persons were present at the spot and he had not joined any public person to the investigation, thereby giving an inference that no sincere efforts have been made to join the public witnesses to the investigation.
32. No plausible explanation have been given for not joining/citing other independent public witness to the investigation.
33. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
34. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 16 of 20 not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 17 of 20 according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 18 of 20
35. PW-3 further deposed that plastic cane and the wooden gotta is not visible in the photographs of the case property and he do not remember the total number of drums on the spot. He further deposed that he is unable to recall whether he mentioned anything of the documents prepared in the investigation regarding the total number of drums on the spot. Aforesaid testimony of PW-3 reflects bad investigation by the police officials.
36. It is also pertinent to note that accused is charged with the offence of manufacturing suprioius oil/lubricants without any license for supply in the market, the terms supply in the market pre-supposes existence of customers through whom the transaction of sale has been effected. However, PW-4 categorically deposed in his cross examination that no customer came inside the shop during the time they stayed there and they do not find any sign board, stock register, sale register, cash memo or any other documents so as to suggest the sale of oil. Accordingly, sale cannot be presumed in view of aforesaid testimony. He further deposed that he did not come across any evidence to suggest adulteration during the time the investigation of the case is remained with him, which gives an inference that prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt.
37. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, non examination of injured/public witness, contradictions in the testimony of witnesses, non examination of secret informer, prosecution has failed to establish its case against the accused persons Deepak Nanda and Anil beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused persons and accused persons Deepak Nanda and Anil stands acquitted of the offences under Section 7/10/55 Essential Commodities Act accordingly.
FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 19 of 20
38. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
39. File be consigned to the record room after due compliance.
Digitally signed SHILPI by SHILPI JAIN
Date:
Pronounced and Signed
in the Open Court on 21.12.2019 JAIN 2019.12.23
17:42:49 +0530
(Shilpi Jain)
MM-02(Central)/THC/Delhi
21.12.2019
FIR No. 70/02 PS Timarpur State Vs. Deepak Nanda & Anr. Page No. 20 of 20