Delhi District Court
State vs . Raju Aggarwal & Anr. on 17 December, 2019
1
IN THE COURT OF SH. VIVEK KUMAR AGARWAL, MM04, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
STATE VS. Raju Aggarwal & Anr.
FIR NO: 577/00
P. S Mehrauli
Crc No. 2031973/16
JUDGMENT
Date of its institution : 03.06.2003
Name of the complainant : SI Surender Sharma
PS Mehrauli
Date of Commission of offence : 22.09.2000
Name of the accused : 1) Raju Aggarwal
S/o Sh. Narayan Aggarwal
R/o 104 A/9, Kishangarh,
New Delhi.
2) Bhagwan Singh
S/o Sh. Manak Chand
R/o 166/16, Rana Colony,
New Delhi.
Offence complained of : u/s 3 r/w Section 7 of Essential
Commodities Act
Plea of accused : Not Guilty
Case reserved for judgment : 09.12.2019
Final Order : Accused Raju Aggarwal is
acquitted for offence u/s
u/s 3 r/w Section 7 of Essential
Commodities Act and accused
State Vs. Raju Aggarwal & Anr. Case No.2031973/16
2
Bhagwan Singh is convicted for
offence u/s 3 r/w Section 7 of
Essential Commodities Act
Date of judgment : 17.12.2019
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The present case is prosecuted by the State against both the accused persons for having committed offences punishable u/s 3 read with Section 7 of Essential Commodities Act (herein after called as EC Act).
2. Briefly stated, the allegations against the accused persons are that on 22.09.2000 at about 09.45 pm on road of Fatehpur Beri village, the accused persons were found in possession of one vehicle i.e. Tata 407 truck bearing no. DL1L8040 containing 3000 liters of kerosene oil and also found transporting the same in contravention of the relevant laws and thereby the accused persons have committed offence punishable u/s 3 read with Section 7 of Essential Commodities Act.
3. After completing the formalities, investigation was carried out by PS Mehrauli and a charge sheet was filed against both the accused persons.
4. Charge was framed against the accused persons u/s 3 read with Section 7 of Essential Commodities Act, to which they pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution examined seven witnesses. PW1 Retired Manager Sh. J S Chauhan that on 06.03.2002, he received the sample case properties for analysis and said samples were tested and he issued a report in this regard, which are Ex.PW1/A & Ex.PW1/B. He was cross examined on behalf of the accused persons.
6. PW2 K C Sharma deposed that he was the owner of the truck in question State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -3- bearing no. DL1L8040 and that he had sold the said truck, however he did not deposed anything about the present case and was cross examined on behalf of prosecution.
7. PW3 ASI Jawahar Singh deposed that on 22.09.2000, he was posted at PS Mehrauli and on that day, he alongwith Ct. Satyawan were on patrolling duty in the area of Fatehpur Beri. At about 9.00 pm, they met IO SI Surender Sharma and Ct. Dalbir on the way near Fatehpur Beri. At that time, one secret informer came to them and gave information to SI Surender Sharma that one tanker bearing no. DL1L8040 would come from Mehrauli side carrying kerosene oil. IO prepared a raiding party consisting of himself and other police officials. IO also requested 34 public persons to join the raiding party however, nobody agreed and left the spot without disclosing their names and identities. Thereafter, the raiding party took position on both sides of the road and started checking the vehicles passing through. At about 9.45 pm, he saw one tanker bearing no. DL1L8040 coming from Mehrauli side and the said vehicle was stopped by the raiding team. Thereafter, IO made inquiry from the driver of the said tanker who disclosed his name as Bhagwan and he further disclosed that the said tanker belonged to Raju Aggarwal. The said tanker was checked and the same was found containing kerosene oil. Thereafter, the owner of the said tanker namely Raju Aggarwal was called at the spot. Thereafter, IO had sent Ct. Dalbir to Food & Supply Office for intimation. Thereafter, IO prepared rukka and handed over the same to him and he went to PS and got the FIR registered and he handed over the copy of FIR and original rukka to the IO. Thereafter, IO seized the offending vehicle. Thereafter, IO arrested the accused. Thereafter, IO recorded his statement. He correctly identified accused Bhagwan in the court.
State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -4- He was cross examined on behalf of the accused persons.
8. PW4 HC Satyawan deposed on the same lines as deposed by PW3. He was cross examined on behalf of the accused persons.
9. PW5 Ct. Abhay Singh deposed that on 05.03.2002 he received the sample case properties and thereafter deposited the same at Indian Oil Corporation Brijwasan and he deposited the photocopy of RC in the malkhana Mehrauli. He was not cross examined on behalf of the accused persons despite opportunity.
10. PW6 ASI Ram Rattan deposed that on 22.02.2002 he was posted at PS Mehrauli and on that day, he joined the investigation of the present case. He collected the samples i.e. sealed cans from the then MHC(M) PS Mehruli and went to Indian Oil Office, Shakur Basti to deposit the same vide RC No. 184/21 dated 22.02.2002, however concerned official of Indian Oil Office refused to deposit the same due to absence of order for deposition. He alongwith IO returned back to PS Mehrauli and deposit the same in malkhana PS Mehrauli. Thereafter, IO recorded his statement. He was not cross examined on behalf of the accused persons despite opportunity.
11. PW7 Retired Inspector Surender Sharma deposed that on 22.09.2000, he was posted at PS Mehrauli and on that day, he was on patrolling duty alongwith Ct. Dalbir. At about 8.15 pm, they were present near Fatehpur Beri village where he met another two constables namely PW4 HC Satyawan and PW3 ASI Jawahar. They also joined him for patrolling. After some time, one secret informer came to him and told him that one TATA 407 Truck bearing no. DL 1L8040 would be coming from Mehrauli side carrying kerosene oil meant for PDS (Public Distribution System). After receiving the said information, he requested 34 public persons to join raiding party but none agreed and left the State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -5- spot without disclosing their name and identities. Thereafter, a raiding party was constituted. At about 09.45 pm, they saw one TATA 407 Truck bearing no. DL 1L8040 coming from Mehrauli side, on seeing the said vehicle, they signaled to stop the said truck. Thereafter, driver of the said vehicle i.e. accused Bhagwan Singh got down and he was interrogated and he further disclosed that the said tanker was containing kerosene oil and the same belongs to coaccused Raju Aggarwal. Thereafter, he checked the said tanker and verified that the same was containing blue colour kerosene oil. Thereafter, he sent PW4 Ct. Satyawan to call accused Raju Aggarwal. That after some time PW4 Ct. Satyawan came back alongwith accused Raju Aggarwal. On inquiry, accused Raju Aggarwal could not produce any relevant documents with regard to the source of kerosene oil. Thereafter, he sent Ct. Dalbir to the office of Food and Civil Supply for intimation and further action. Thereafter, he initiated further proceedings and prepared rukka Ex.PW7/A and handed over the same to PW3 Ct. Jawahar, who went to PS and got the FIR registered. Thereafter, he took out two 5 ltr. Cans of kerosene oil from the said tanker for sample purpose and sealed the same with seal of KSP. Thereafter, he seized the said cans vide seizure memo Ex.PW4/A. Thereafter, he sealed all the outlets of the said tanker with seal of KSP. Thereafter, he seized the tanker/truck i.e. TATA 407 bearing no. DL 1L8040 vide seizure memo Ex.PW4/B. Thereafter, he seized the documents of the offending vehicle vide seizure memo Ex.PW4/C. Thereafter, he arrested accused Raju Aggarwal vide arrest memo Ex.PW4/D and his personal search was conducted vide memo Ex.PW4/E. Thereafter, he arrested accused Bhagwan Singh vide arrest memo Ex.PW4/F and his personal search was conducted vide memo Ex.PW4/G. Thereafter, he also recorded disclosure State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -6- statement of the accused persons vide memo Ex.PW4/H & Ex.PW4/I. During the investigation, he sent the sample case property to Indian Oil Corporation for analysis and he received the report. He correctly identified the accused persons in the court as well as the photographs of the case properties as Ex.PX1 to PX6. He was cross examined on behalf of the accused persons.
12. After closure of prosecution evidence, the statements of accused persons namely Raju Aggarwal and Bhagwan Singh u/s 313 of Cr.P.C were recorded. All the incriminating circumstances and incriminating evidence were put to both the accused persons. The accused persons denied all the allegations against them. They further took defence that police had called them at the PS and obtained their signatures on some blank papers. They chose not to lead any evidence in their defence.
13. Final arguments addressed by the Ld. APP for the State as well as the Ld. Defence Counsel have been heard and file has been minutely and carefully perused.
14. It has been argued by the Ld. APP for the State that prosecution has proved its case beyond reasonable doubt on the basis of the testimony of all the witnesses. That both the accused persons were found in possession of 3000 liters of kerosene oil and therefore, they are liable to be convicted for the offence they have been charged with.
15. On the other hand, Ld. Counsel for accused persons several fold arguments.
Firstly, it has been emphatically argued by ld. Defence counsel that in the year 2000, there was one 'Anti Hoarding Cell' in Food & Supply Department to deal with the offences under E C Act and police was not supposed to conduct the investigation. It is submitted that as deposed in crossexamination of PW7, no State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -7- written information was given to said department and therefore, the entire investigation conducted by the police is without any authority of the police. Secondly, it is argued that prosecution has failed to prove which control order was violated by the accused persons. Thirdly it is contended that owner of the truck examined as PW2 failed to support the prosecution. Fourthly, that prosecution has also failed to prove the source of kerosene oil in question. It is submitted that there were three kerosene oil depot in the area, where from the truck in question was seized, however no investigation was made from either of these kerosene oil depot, if the said truck belong to either of these depot. It is further argued that the recovery was allegedly made from public place, however no witness from public was joined by the IO and therefore, the recovery on the basis of the testimony of police witnesses cannot be proved. Lastly, it is argued that only 7 of the 14 witnesses mentioned in the list of witnesses were examined on behalf of prosecution. Accordingly, it is submitted that prosecution has failed to prove its case beyond reasonable doubt and accused are entitled to be acquitted.
16. Heard. File perused. Now let me advert firstly to the contentions of Ld. Defence counsel one by one. Regarding the first contention, it is to observe that the offence under E C Act is a cognizable offence and therefore police official certainly has power to investigate the matter. In this regard, I find it worth to discuss the scope of law at length. The said aspect came for consideration before Hon'ble Apex Court in case of "Satya Narain Musadi And Ors. vs State Of Bihar, AIR 1980 SC 506", wherein the law was discussed at length in this regard. The reference was made to the relevant provision of EC Act and it was held as follows:
State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -8- Section 10A of the Act provides that notwithstanding anything contained in the CrPC, 1973, every offence punishable under the Act shall be cognizable which would imply that an officer in charge of police station on receipt of the information of such cognizable offence may without the order of a Magistrate investigate into the offence according to the procedure prescribed in Chapter XII of the Code.
Section 11of the Act reads as under:
11. No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21of the Indian Penal Code.
The court is precluded from taking cognizance of any offence punishable under the Act except (i) on a report in writing of the facts constituting such offence; (ii) such report must be made by a person who is a public servant as defined in Section 21of the Indian Penal Code..................................Section 11 of the Act precludes a Court from taking cognizance of the offence punishable under the Act except upon a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code. The question is, if such police officer investigating into an offence which the Act has declared as cognizable submits a report in writing under Section 173(2) disclosing an offence under the Act and requesting for proceeding further into the matter, would it satisfy the requirements of Section 11 for taking cognizance of the offence so disclosed? Undoubtedly the police officer submitting the report would be a public servant within the meaning of Section 21, I.P.C. and his report has to be in writing as required by Section 173(2). It must disclose an offence of which cognizance can be taken by the Magistrate.
Apparently Section 11 would stand fully complied with.
State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -9-
17. The said authority of Hon'ble Apex court was further relied upon by Hon'ble Karnatka High Court in "Dharanarendrappa H.N v. State of Karnataka (1991 Crl.L.J.2262)" and the court held that since every offence punishable under the Essential Commodities Act is a cognizable offence, a police officer has the power to investigate into the offence though an Order made under the Act does not confer on him such power.
18. Similar question came up for consideration before the Rajasthan High Court in "State of Rajasthan v. Prakash Chandra and others (1995 Crl.L.J.2295)". Relying on the decision of the Supreme Court in "State of Maharashtra v. Natwarlal Demodardas Soni, (AIR 1980 SC 593)" the court held that since the offences under the Essential Commodities Act are cognizable offences, a police officer can conduct investigation without the order of a Magistrate.
19. In view of this legal position, it is to be concluded that the first contention raised on behalf of the accused is without any merits and the police in the present case certainly had power to investigate the matter.
20. Now coming to the second contention, it is to observe that a control order is passed by the Govt. under Section 3 of EC Act and it is certainly in nature of delegated legislation, which is certainly a 'law'. Section 57 of Indian Evidence Act clearly mandates that court has to be take the judicial notice of a law enforce in the territory of India. Accordingly, only on the ground that relevant control order was not produced by the prosecution, case of prosecution is not tainted and I take judicial notice of the relevant control order i.e. Notification dated 5th December, 1962 bearing No. F/15(6)/62F&CS passed in exercise of the powers conferred subclause (2) of Section 3 of the Essential Commodities Act, 1955 (10 of 1954 read with Government of India, Ministry of Mines & Fuels S. No. State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -10- 3524, dated the 13th November, 1962 and the prior approval of the Govt. of India, Ministry of Mines & Fuel by the Administrator of the Union Territory of Delhi on the subject Delhi Kerosene Oil (Export & Price) Control Order 1962.
21. Now regarding the third contention, it is to observe that the owner of the vehicle in question was not required for case of the prosecution being proved, as it is the person from whose possession the recovery was made, who is under burden to explain the possession of the essential commodity in question i.e. kerosene oil. In this regard, relevant part of the control order 1962, as mentioned above is reproduced herein as follows:
3 F. Prohibition of unauthorized purchase, sale and possession of Kerosene oil (Added by vide order No. F12 (2) B2 F&S (P&C) dated 02.12.1982):
No person shall acquire or have in his possession or purchase kerosene oil except from a dealer holding a licence under the provisions of this order or direct from the agents of the kerosene oil on the basis of allotment made and release order issued by competent authority or otherwise than on the permission granted in this behalf by the Commissioner.
Explanation : For the purpose of this clause, any person who is found in possession of kerosene oil exceeding 22 liters shall be deemed to have stored kerosene oil for the purpose of sale unless the contrary is proved the burden of which shall be upon him.
22. Accordingly, this contention again is not sustainable. Now regarding the other most important contention of ld. Defence counsel with respect to nonjoining of public witness, it has to be observed that it is not in every case that the testimony of official witnesses is to be discarded only for the reason that no independent witness has been joined. The Hon'ble Supreme Court in case of Chander vs. State of Haryana (2013) 14 SCC 420 observed as follows:
State Vs. Raju Aggarwal & Anr. Case No.2031973/16
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"When a police officer gives evidence in court that a certain article was recovered by him on the strength of statement made by accused, it is open to Court to believe that version to be true if it is not otherwise so to be unreliable whose burden is on the accused, through cross examination of witnesses or through materials, to show that evidence of the Police Officer is unreliable. It is not permissible to presume that police action is unreliable. It was further observed that from nonjoining of independent witness where evidence of prosecution witnesses may be found to be cogent, convincing, credit worthy and reliable cast doubt on prosecution case where there seems to be no reason on record to falsely implicate the accused.
23.In this regard reliance can be also placed upon other authorities of Hon'ble Apex Court and Hon'ble High Court of Delhi such as Gian Chand and others vs State of Haryana (2013) 14 SCC 420, Ram Swroop vs State (Govt. of NCT of Delhi) (2013) 14 SCC 235, State (Govt of NCT of Delhi) vs Sunil (2001) 1 SCC 652 and Hori Lal vs State of NCT of Delhi 1995 SCC Online Del 212.
24.Again it would not be out of place to refer to the illustration "e" of Section 114 of Indian Evidence Act which provides the presumption regarding judicial and the official acts.
25.Now coming to the present case, there is nothing on record in cross examination of either of the police witnesses to raise any question that there was any animosity between the police official SI Surender Sharma or Ct. Dalbir or ASI Jawahar Singh, who had apprehended accused Bhagwan Singh and had seized the tanker of the kerosene oil and accordingly it can be presumed in no manner that the accused has been falsely implicated in the present case. Perusal of testimony of PW4 clearly provides that IO of the case had requested some passerby to join the investigation, however nobody agreed and they left the spot State Vs. Raju Aggarwal & Anr. Case No.2031973/16 12 without disclosing their name and identity. Accordingly it is clear that there was no fault on the part of the police officials or IO for nonjoining of any independent public witness. Accordingly, the contention of Ld. Defence counsel in this regard is not sustainable.
26.Now coming to the last contention of the ld. Defence Counsel, it is to observe that it is not the quantity of the evidence but the quality, which is material as contemplated u/s 134 of Indian Evidence Act.
27.In view of aforesaid discussion, it is to be concluded that all the contentions raised by the ld. Defence counsel are not sustainable.
28. Now coming to the merits of case of prosecution, it is to observe that accused Bhagwan Singh was apprehended at the spot with one tanker containing about 3000 liters of kerosene oil and accused Raju Aggarwal was arrested on the basis of the disclosure of accused Bhagwan Singh. It is to observe that only on the basis of disclosure statement given by coaccused before the police, conviction of coaccused cannot sustained. Prosecution has failed to lead any evidence to establish that the tanker with kerosene oil seized from possession of accused Bhagwan Singh belonged to accused Raju Aggarwal. In the testimony of IO, nothing has been deposed, if any other evidence was collected during the investigation except the disclosure memo of coaccused Bhagwan Singh to substantiate that the said tanker belonged to accused Raju Aggarwal. Accordingly, I come to the conclusion that prosecution has completely failed to prove its case against accused Raju Aggarwal and he is hereby acquitted of the charge framed against him under Section 3 r/w Section 7 of Essential Commodities Act.
29. Now coming to the case of prosecution against accused Bhagawn Singh, it is to State Vs. Raju Aggarwal & Anr. Case No.2031973/16 13 observe that PW3 ASI Jawahar Singh, PW4 HC Satyawan and PW7, IO of the case Inspector Surender Sharma have supported the case of prosecution in all material particulars and on the other hand there are no material contradictions in the testimony of all these three witnesses regarding the recovery of the tanker containing kerosene oil about 3000 liters from possession of accused Bhagwan Singh through recovery memo Ex.PW4/3. The case property in the present case was disposed of and the photographs of the same i.e. Ex.PX1 to Ex.PX6 were duly produced in the testimony of PW3.
30. Again IO of the case i.e PW7 has clearly deposed that the case property was sealed with the seal of 'KSP' and same is clearly corroborated from the recovery memo Ex.PW4/B. Again PW5 Ct. Abhay Singh further corroborated the same as he had deposited the samples of the case property in plastic cans in the malkhana. Again during the examination in chief of PW4, MHC(M) of the PS had also produced the register no. 19 in which there was clear entry bearing no. 1607 regarding deposition of case property in malkhana on 23.09.2000. Accordingly, it is established that case property was through out in safe custody and has not been tempered with. Again from testimony of PW1 and from the report Ex.PW1/A & Ex.PW1/B, it is further established that the samples were of the kerosene oil only, as per the BIS standards.
31. Now coming to the charge u/s 3 r/w Section 7 of Essential Commodities Act, it is to observe that as per the allegation of prosecution, accused Bhagwan Singh was found in possession of 3000 liters of kerosene oil. As discussed above, clause 3 (F) of Control Order 1962, clearly provides that n o person shall acquire or have in his possession or purchase kerosene oil except from a dealer holding a licence under the provisions of this order or direct from the agents of the kerosene oil on the basis of allotment made and release order State Vs. Raju Aggarwal & Anr. Case No.2031973/16 -14- issued by competent authority or otherwise than on the permission granted in this behalf by the Commissioner. Again as per the explanation, burden is upon the accused only to explain the possession of said kerosene oil. No evidence has been led on behalf of accused Bhagwan Singh to discharge his burden.
32.Accordingly, I come to the conclusion that prosecution has successfully proved its case beyond reasonable doubt that kerosene oil of about 3000 liters was recovered from the possession of accused Bhagwan Singh in violation of the Control Order 1962. Again as said Control Order pertains to Section 3 (2) (f), the offence was committed by accused Bhagwan Singh punishable u/s 7 (1) (a) (ii) of EC Act. 6
33.In view of aforesaid discussion, accused Raju Aggarwal is acquitted for offence u/s 3 r/w Section 7 of Essential Commodities Act and accused Bhagwan Singh is convicted for offence punishable u/s 7 (1) (a) (ii) of EC Act.
34.File be put up for arguments on quantum on sentence.
Announced in the open court (Vivek Kumar Agarwal)
on 17.12.2019 Metropolitan Magistrate04,
South, New Delhi
It is certified that this judgment contains 14 pages and each page bears my signatures.
(Vivek Kumar Agarwal)
Metropolitan Magistrate04,
South, New Delhi/17.12.2019
State Vs. Raju Aggarwal & Anr. Case No.2031973/16