Delhi District Court
State vs Bhola Ram on 14 August, 2013
IN THE COURT OF SH. PAWAN KUMAR, MM12,
SOUTH EAST, SAKET COURTS, DELHI
State Versus Bhola Ram
FIR No. : 70/01
P.S. : Lodhi Colony
Under Section : 7/10/55 Essential
Commodities Act.
1.Serial No. of the case : 344/12
2.Date of commission of offence : 23.02.2001
3.Name of the Complainant : R.K. Meena
Ins. Enforcement Deptt.
4.Name of the accused and his : Bhola Ram
parentage & residence address : S/o Kashmiri Lal,
R/o 6.19, Old Double
storey, Laj Pat Nagar,
New Delhi.
5.Date when judgment reserved : 29.07.2013
6.Date when Judgment pronounced : 14.08.2013
7.Offence Complained of or proved : 7/10/55 EC Act.
8.Plea of accused :Pleaded not guilty
9.Final Judgment : Acquittal
FIR No. 70/01
State Vs. Bhola Ram Page No.1 of 8
1. The accused Bhola Ram stood for trial for commission of offence u/s 7/10/55 Essential Commodities Act 1955. The present case FIR was registered on the complaint of Sh. R.K. Meena, Inspector enforcement Branch. The facts stated in the complaint in brief are that the complainant alongwith other officers of enforcement branch visited the premise of shop no. 99, Mehar Chand Market, Lodhi Road ( hereinafter to be referred as the shop) and found the accused who introduced himself as owner of the shop. On inspection of the shop, they found 390 liters of blue kerosene oil meant for public distribution system and 710 liters of white kerosene oil suspectly converted from blue kerosene oil. The accused could not produce any documents of authorization to store and sale of kerosene oil. On the statement, the present case FIR was registered and investigation was conducted.
2. After completion of investigation, charge sheet was filed against the accused. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for the offences U/s 7/10/55 E.C. Act was framed against the accused to which accused pleaded not guilty and claimed trial.
4. In order to prove its case against the accused, prosecution has examined 7 witnesses.
5. PW 2 R.K. Meena was the complainant and member of FIR No. 70/01 State Vs. Bhola Ram Page No.2 of 8 raiding party. He deposed that on 23.02.2001 on receiving of secret information, he alongwith Insp. Chander Shekhar / PW3 and Insp. T.R. Gupta / PW6 visited the shop no. 99 Mehar Chand Market. The accused met them and introduced as owner of the said shop. On search of the said shop they found 390 liter of blue kerosene oil meant for PDS supply of Delhi. The kerosene oil was store in two drums of 220 liter and 170 liter. They also found 710 liter white kerosene oil suspectedly converted from blue kerosene oil. The white kerosene oil was found in the drums. The accused failed to produce any document regarding the recovered oil. PW2 made the written complaint to Anti Hoarding cell which is Ex PW2/A. He took 3 liters of kerosene oil from each drum and kept in a container sealed with the seal of CRS. One sample each was returned to the accused. They prepared the production cum seizure memo of samples and case property and the same are Ex PW2/C and PW2/D respectively. They released the case property on superdari to Sh. Janak Pal, proprietor of shop no.100, Mehar Chand Market. The superdari memo is Ex PW2/E. In his cross examination he stated that no public persons were present at that time. No statement of nearby shopkeeper was recorded. The documentary evidence of ownership and possession of the shop was not collected.
6. PW3 Insp. Chander Shekher and PW6 Insp. T.R. Gupta were also member of raiding party and accompanied the complainant during search of the shop. They deposed similar facts in the examination as stated by PW2 / complainant.
FIR No. 70/01 State Vs. Bhola Ram Page No.3 of 87. PW4 Janak Raj was the superdar to whom the recovered case property was released on superdari. He deposed that he does not know what was containing in the drums. He produced the two drums as Ex PW1 and PW2. He was cross examined by Ld. APP on the point that he witness the recovery and seizure of the case property.
8. PW7 Ct. Devender Kumar accompanied the SI Satish Kumar during investigation. He deposed that on 23.02.2001 he joined the investigation with SI Satish Kumar who handed over rukka to him. Thereafter, he got registered the FIR. He came back to the spot with the original rukka and photocopy of FIR. The accused was arrested in his presence vide memo Ex PW6/A. In his cross examination, he stated that he does not remember whether any public person was present or not at the spot. He further stated that IO wrote the FIR number at the top of the pages which were prepared by him at the spot.
9. After examining all the material prosecution witnesses, the prosecution evidence was closed.
10. After exhausting the list of prosecution witnesses, prosecution evidence was closed. All the incriminating facts came in evidence against the accused were put to the accused while recording his statement u/s 313 Cr.PC. He denied to lead defence evidence.
11. I have heard the arguments put forth by the Ld. APP for the state and by Ld. Defence Counsel. I have also perused the materials available on record.
FIR No. 70/01 State Vs. Bhola Ram Page No.4 of 812. It is the case of the prosecution that accused was found in possession of white and blue kerosene oil meant for PDS system of Delhi without any authority to store and sell the same. The aforesaid recovery was effected by the officer of food and supply department from shop no. 99, Mehar Chand Market allegedly in the possession of the accused. In the present case the prosecution has to prove that the accused was the owner or proprietor of the shop from where the recovery was made and the accused was in conscious possession of the recovered case property. Furthermore, the prosecution is bound to prove that the case property which was recovered was a kerosene oil.
13. PW2, PW3 and PW6 are the member of the team which visited the shop and recovered the case property. The aforesaid witnesses deposed that the accused was found at the shop and introduced himself as owner of the shop. It is stated by aforesaid witnesses in their cross examination that no documents was collected to show the ownership and possession of the aforesaid shop. Furthermore, no public persons or shopkeeper from the neighbouring shop was made as a witness to the recovery or to show that the accused is the owner of the said shop.
14. There are contradiction in the testimony of PW2, PW3 and PW6. As per PW2, no public persons were present at the spot at the time of recovery whereas PW3 stated that there were many public persons near the spot. PW2 stated that the kerosene oil was measured with the help of guage but the same is not mentioned in the seizure memo. As per PW3, the kerosene was measured with FIR No. 70/01 State Vs. Bhola Ram Page No.5 of 8 dip road / caliber road but he could not state from where the road was brought. PW6 could not tell the number of the drums seized from the shop. Admittedly, no specific mark of identification was put on the drums.
15. Admittedly, the case property was recovered from the shop situated in the market. There were public persons present at the spot and some neighbouring shopkeepers were also present there. But none of the public persons were joined at the time of search and recovery of the alleged case property.
It is well settled proposition that non joining of public witness shrouds doubt over the fairness of the investigation by police. Even Section 100 (4) CrPC casts statutory duty upon the official conducting search to join two respectable persons of the society, which is not done in the present case. In the case of Pawan Kumar Vs. The Delhi Administration, 1989 Crl LJ 127 Delhi, it has been held as under: "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 explanation from the side of the prosecution is forthcoming FIR No. 70/01 State Vs. Bhola Ram Page No.6 of 8 for not joining the independent witnesses. 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."
16. The samples taken from the alleged recovered kerosene oil were seized by the IO but the same were not sent to the FSL for examination. No such report of examination of the samples is placed on record. The prosecution could not established that the alleged recovered material was a kerosene oil.
17. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
18. So, keeping in view the above discussion and materials available on record, I am of the considered view that charges against the accused u/s 7/10/55 Essential Commodity Act are not FIR No. 70/01 State Vs. Bhola Ram Page No.7 of 8 proved by the prosecution beyond reasonable doubt. Hence, accused Bhola Ram is acquitted for the allegations u/s 7/10/55 Essential Commodities Act.
19. File be consigned to record room after necessary compliance.
Announced in open Court ( PAWAN KUMAR )
On 14.08.2013 Metropolitan Magistrate12,
South East, Saket Courts.
FIR No. 70/01
State Vs. Bhola Ram Page No.8 of 8