Bangalore District Court
The State Through vs Amar @ Amar Sri on 20 February, 2023
KABC030069922020
Presented on : 28-01-2020
Registered on : 29-01-2020
Decided on : 20-02-2023
Duration : 3 years, 0 months, 23 days
IN THE COURT OF THE XXXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
PRESENT
SMT.LATHA .J, B.COM, LL.B.,
XXXII Addl.C.M.M, Bengaluru
Dated this the 20th February, 2023
C.C.No.1889/2020
Complainant : The State through
Police Inspector,
Kengeri Police Station
( By Asst. Public Prosecutor )
--- V/s ---
Accused : Amar @ Amar Sri,
S/o Ashok Kumar,
R/at No.36, 1st main road,
Maruthi nagar, Nagarabhavi,
Bengaluru
(By Sri.Mahdav Khashyap Adv.,)
Date of commencement of : 25-12-2019
offence
2
C.C.1889/2020
Date of report of offence : 25-12-2019
Arrest of the Accused : ---
Name of the Informant : Sri.Ravi
Date of commencement of : 24-06-2022
recording evidence.
Date of closing of : 18-07-2020
evidence.
Offences complained of : U/Secs.285, 420 of IPC, u/s
7(1)(A)(1) of Essential
Commodities Act-1955, Sec-3(1)
(A)(B)(C), 4(1)(A)(B)(C)(D), 6, 7(A)
(B)(C) of Liquefied Petroleum
Gas Supply and Distribution
order-2000
Opinion of the Judge. : Accused is found not guilty
Date of Judgment : 20-02-2023
XXXII Addl.C.M.M
Bengaluru.
JUDGMENT
The Police Inspector of Kengeri P.S has submitted the Charge Sheet against the accused for the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of Essential Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A)(B)(C)(D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-2000.
3C.C.1889/2020
2. The brief facts of the Prosecution case are as follows:
That on 25-12-2019 at about 5.00 PM, on receipt of credible information conducted raid along with CW-2 to 6 at No.1, Sri. Taruna Distributor situated near to the Veerabhadreshwara bar and restaurant, R.V.college road, Milasandra, Kengeri and they found that accused with an intention to make wrongful gain possessed domestic and commercial gas cylinders of various companies and would refill gas cylinder without adhering to safety measures and sell the refilled small gas cylinders for a higher price and cheated the public and Government and thereby accused committed an offence punishable U/Secs.285, 420 of IPC, u/s 7(1) (A)(1) of Essential Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A) (B)(C)(D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-2000.
3. On the basis of the Statement of C.W-1, the Kengeri Police have registered a case under Crime No.364/2019 for the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of Essential Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A)(B)(C) (D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-2000 against the accused persons and submitted the FIR before the court. Thereafter investigating officer visited the spot and drawn the spot mahazar and recorded the statement of witnesses on completion of the investigation, the Charge Sheet has been filed against the accused for the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of Essential 4 C.C.1889/2020 Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A)(B)(C)(D), 6, 7(A) (B)(C) of Liquefied Petroleum Gas Supply and Distribution order- 2000. On the receipt of the police report, this court has taken cognizance for the said offences.
4. On the appearance of the accused, the accused was enlarged on bail. The copies of prosecution papers were furnished to the accused as contemplated U/Sec. 207 of Cr.P.C. After hearing both the parties, the charge was framed against the accused for the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of Essential Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A)(B)(C)(D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-2000 and read over to him. Accused pleaded not guilty and claimed to be tried. Hence, the matter was posted for evidence.
5. In order to bring home the guilt of the accused, the prosecution has got examined three witnesses as P.W-1 to 3, out of the total charge sheet witnesses as C.W-1 to 7 and got marked 3 documents as Ex.P-1 to P3. Learned A.P.P prayed for issuance of summons to C.W-2, 3, 5 and 6, in spite of giving sufficient opportunities to I.O to execute summons and NBW, the witnesses have not been secured. Hence, the evidence of C.W-2, 3, 5 and 6 is dropped by rejecting the prayer of the learned Assistant Public Prosecutor.
5C.C.1889/2020
6. After closure of prosecution evidence, the accused is examined U/s.313(1)(b) of Cr.P.C. Each and every incriminating circumstances found in the evidence of the prosecution against the accused is separately read over to the accused. The accused is denied all such circumstances as false. The accused is did not choose to adduce defense evidence and No documents are got marked, on his behalf.
7. I have heard the arguments addressed by the learned Assistant Public Prosecutor and learned advocate for the accused.
8. On going through the facts and circumstances of the prosecution case, the following points would arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 25.12.2019 at about 5.00 PM, the CW-1 received credible information and conducted raid in the presence of CW2 and 3 mahazar witnesses and along with CW-4 to 6 police staff, at No.1, Sri.Tarun Raghav Distributor Shop, Near Veerabhadreshwar Bar and Restaurant, Mylasandra and they found that the accused with an intention to make wrongful gain possessed domestic and commercial cylinders 6 C.C.1889/2020 of various companies and the accused would refill small gas cylinders without adhering to safety measures and sell the refilled small gas cylinders for higher price and cheated the public and Government and thereby the accused committed the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of Essential Commodities Act-1955, Sec-3(1)(A)(B) (C), 4(1)(A)(B)(C)(D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-
2000?
2. what Order ?
9. My findings to the above Points are as under:
Points No.1 : In the Negative.
Point No.2 : As per final order,
For the following: -
REA S ON S
10. Points No.1 :- As these points are inter linked with each
other and also similar evidence is led on all these points, I have taken all these points together for common discussion in order to avoid repetition of facts and discussion.
11. It is an allegation that the accused has committed the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of 7 C.C.1889/2020 Essential Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A)(B)(C) (D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-2000.
12. In order to prove its case, prosecution has got examined 3 witnesses namely C.W-1/P.W-1-Ravi, C.W-2/P.W-4 -Shivanna, C.W-3/P.W-7-Venkatesh Murthy. Out of the documents marked for the prosecution, Ex.P-1 is the complaint, Ex.P-2 is the mahazar, Ex.P-3 is the FIR.
13. In support of the case of prosecution, C.W-1 informant of crime Ravi is examined as P.W-1. C.W.4/Shivanna is examined as P.W.2 and C.W.7/Venkatesh Murthy is examined as P.W.3.
14. C.W-1/P.W-1 Ravi and C.W-4/P.W-2 Shivanna in their evidence deposed that on 25.12.2019, on receipt of credible information went to examine Tarun enterprises shop situated at Veerabhadra bar and restaurant, Milasandra along with CW3, 5 & 6, on verification of the shop, they found 29 small cylinders weighing 5 K.G, 2 cylinder weighing 19 kg each, 10 empty cylinder weighing 19 k.g each, 21 empty cylinder weighing 12 kg, found re-filling pipe and weighing machine and seized the above said articles at 5.30 to 6.30 PM, drawn the mahazar and gave report as per Ex.P1.
15. P.W-3/Venkatesh Murthy in his evidence deposed that on 25-12-2019 at about 7.15 PM, registered crime on the basis of 8 C.C.1889/2020 report given by complainant in Crime No.364/2019 and submitted FIR before the court as per Ex.P1 and mentioned the material objects in P.F. On 25.12.2019 obtained statement from CW-2 to 6.
16. During the course of trial, the accused took up defence that no incident took place as alleged and the complainant has filed this false case.
17. In the light of above material available on record the learned APP argued that, evidence of PW-1 to 3 coupled with the contents of Exhibits is sufficient to convict the accused. Again he argued that, though most of the witnesses have not been examined, even then evidence of PW-1 to 3 is sufficient to convict the accused.
18. The learned advocate for the accused argued that, there is inconsistency in the evidence of PW-1 to 3. Further he argued that, the case of prosecution is not proved beyond reasonable doubt. The eye witness and the panchas for the seizure of material objects have not stated in accordance with the case of prosecution. The evidence available on record is not sufficient to prove the guilt against the accused. Therefore, the accused is entitled for acquittal on doubt benefit. Therefore he prayed to acquit the accused.
9C.C.1889/2020
19. I have carefully gone through the entire charge sheet materials and also the entire material placed on record. On going through the evidence available on record it is noticed that, PW1 during the course of cross examination he deposed that CW4 to 6 and he went to the place. He has taken the signature of the said persons for the EX.P2 Seizure Mahazar. It is noticed that there is no signature of CW5 and 6 on the seizure Mahazar. It shows that CW4 to 6 had not gone there. No independent witness has been cited in the charge sheet. Therefore, there is no independent corroboration to the case of prosecution. Further as per the evidence of PW1 he does not know from how many years the accused was doing such illegal business. PW1 has not collected any license from the accused. PW1 has not recorded the statement of adjoining shop owner.
20. The prosecution story reveals that, CW1 found 29 small cylinders weighing 5 K.G, 2 cylinder weighing 19 kg each, 10 empty cylinder weighing 19 k.g each, 21 empty cylinder weighing 12 kg, in the shop. The said cylinder is not produced before the court. PW3 the IO during the course of cross examination he deposed that he does not know whether the seized cylinders have been handed over to the Food Department or not. Therefore, the story regarding approach made by CW-1 to the accused is not worth believable.
21. The prosecution story says that, they have seized re-filling pipe and weighing machine. The said instruments and re-filling 10 C.C.1889/2020 pipe are not produced before the court. The story of the prosecution saying that, accused was refilling the gas from one to another cylinder is very difficult to be believed as true.
22. There is no evidence on record to suggest that, accused was illegally refilling the cylinder from one to another. Therefore, it creates a doubt as to whether or not refilling instruments are seized from the shop of accused. Even the prosecution is not certain as to whether the cylinder seized are used for open market or used for domestic purpose.
23. More over as per the provision of section 13 of Liquefied Petroleum Gas Supply and Distribution order-2000 "any officer of the central or the state government not below the rank of Inspector duly authorized by a general or a special order, by the central government or the state government, as the case may be or any officer of a government oil company not below the rank of sales officer, authorized by the central government, may, with a view to securing due compliance of this order or any other order made there under (a) stop and search any vessel or vehicle used or capable of being used for the transport or storage of any petroleum product,(b) enter and search any place,(c) seize stocks of liquefied petroleum gas along with container and /or equipments, such as cylinders, gas cylinder valves, pressure regulators and seals in respect of which he has reason to believe that a contravention of this order has been, or is being, or is about to be made." Whereas in the present case on hand the ASI 11 C.C.1889/2020 the below the rank of Inspector conducted raid. Hence there is no credible value has to be given for the evidence which has been given by PW1.
24. There is no consistent evidence to point towards guilt of accused. The raid and seizure of refilled cylinders from the possession of accused is not proved. Even the prosecution is not able to establish that the gas cylinders seized are essential commodities.
25. Therefore, looking to the above observation and also evidence available on record, I am of the considered opinion that, the prosecution is not able to prove the guilt against the accused beyond reasonable doubt.
26. Evidence of PW-3 i.e. the investigating officer is circumstantial in nature. In view of doubt that had arisen in the evidence of direct witnesses, the evidence given by PW-1 and 2 is not worth to be believed as true and correct.
27. P.w-3 being an official witness has deposed regarding the investigation carried out by him and filing of charge sheet after completion of investigation. The evidence of this witness is only regarding investigation done by him, but his evidence is not pointing to the offences alleged against accused or the involvement of the accused in the alleged crime. So the evidence of this witness is not of much use to the prosecution to prove the 12 C.C.1889/2020 guilt of the accused.
28. The evidence of investigating officers is not corroborated with the evidence of other witnesses. As discussed in the above paras the evidence of other witnesses is not sufficient to believe the case of prosecution beyond reasonable doubt. That apart the contents of exhibited documents are also not corroborated with the oral evidence of the witnesses. The seizure of material objects is not proved to the satisfaction of the court.
29. Therefore looking to the facts and circumstances of the case and also looking to the evidence available on record, it is clear that number of serious doubts arises in the mind of the court as to the evidence and circumstances of the case on hand. Under these circumstances, No doubt the accused is entitled for benefit of doubt. Hence this court held that the evidence placed on record is not pointing out towards guilt of the accused only and accused as a matter of right is entitled for benefit of doubt and prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Under these facts and circumstances of the case, the above Points No.1 is answered in the 'NEGATIVE'.
30. Point No.2: - In view of the findings of point No.1, this court proceed to pass the following;
13C.C.1889/2020 O RDE R Acting U/Sec.248(1) of Cr.P.C. accused is acquitted of the offences punishable U/Secs.285, 420 of IPC, u/s 7(1)(A)(1) of Essential Commodities Act-1955, Sec-3(1)(A)(B)(C), 4(1)(A) (B)(C)(D), 6, 7(A)(B)(C) of Liquefied Petroleum Gas Supply and Distribution order-2000.
Bail bonds of the accused and Surety bonds shall stand canceled.
Section 437(A) of cr.p.c. has been complied.
(Dictated to the Stenographer online and typed by her, judgment corrected and signed by me, then pronounced by me in the Open Court on this the 20th February, 2023).
(Latha. J) XXXII Addl.C.M.M, Bengaluru.
ANNEXURE List of the witnesses examined by the Prosecution:
PW-1 Ravi C.W.1 24/06/2022 PW-2 Shivanna C.W.4 24/06/2022 PW-3 Venkatesh Murthy C.W.7 18/07/2022
List of the Documents exhibited for the Prosecution:
Ex.P1 : Complaint
Ex.P1(a) : Signature of PW1
Ex.P1(b) : Signature of PW3
14
C.C.1889/2020
Ex.P2 : Raid Punchanama
Ex.P2(a) : Signature of PW1
Ex.P3 : FIR
Ex.P3(a) : Signature of PW3
List of the MOs marked on behalf of the Prosecution NIL List of the MOs marked on behalf of Defence:
NIL XXXII Addl.C.M.M, Bengaluru.