Delhi District Court
Cbi vs (I) Sh.Kamal Aggarwal on 1 October, 2011
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 08/10
UID No.02401R0044891999
CBI versus (i) Sh.Kamal Aggarwal
S/o Sh.Gokul Chand Aggarwal
Proprietor of M/s Kamal Oil Mills
33/9 Bawana Road, Samaipur,
New Delhi
R/o B215, Saraswati Vihar,
New Delhi
(ii) Sh.Dinesh Aggarwal
S/o Sh.Gokul Chand Aggarwal
R/o 405, Maitri Apartments,
Sector9, Rohini, Delhi.
(iii) Sh.Vijay Kumar Aggarwal
S/o Sh.Gokul Chand Aggarwal
R/o B215, Saraswati Vihar,
New Delhi.
(iv) Sh.Pawan Kumar
S/o Ram Bilas
Prop. of M/s Vikas Traders
of C69, Viswas Park, Uttam
Nagar, New Delhi.
R/o C69, Viswas Park,
Uttam Nagar, New Delhi.
(v) Sh.Sushil Kumar
S/o Sh.Ram Bilas of M/s Vikas
Traders, C69, Viswas Park,
Uttam Nagar, New Delhi.
R/o C69, Viswas Park,
Uttam Nagar, New Delhi.
(vi) Sh.Mahesh Kumar Magan Lal
Shah, Managing Director of
M/s Krishna Oil & Cotton
Company, Modasa, Distt.
Sabarkantha (Gujarat)
R/o Malpur Road, Octroi Naka 5,
Heven Park, Modasa, Distt.
Sabarkantha (Gujarat).
Case arising out of:
No. : RC SIG2002
PS : CBI
Under Section : 272/273/304/324/328/120B IPC
Judgment reserved on : 06.09.2011
Judgment pronounced on : 01.10.2011
J U D G M E N T
Brief Background:
1. As per record, initially case FIR No. 496/98 was registered at PS Najafgarh, New Delhi on the basis of DD No.14A/17A PS Najafgarh on the allegations that Smt. Sushila W/o Sh. K.K. Jha and Ms Pinky D/o Sh. K. K. Jha had consumed adulterated mustard oil and Ms Pinky died on 24.8.98 in DDU Hospital and Smt. Sushila died on 25.8.98. Subsequently, the case was transferred to the Crime Branch of Delhi Police. Thereafter, Ministry of Home Affairs, Govt. of India vide letter No. 14036/3/98UIP dated 04.9.98 directed further investigation of the case by CBI and accordingly case No. RC SIG 1998 S 0002 dated 07.9.98 was registered in CBISIG Branch, New Delhi and investigation was carried out.
2. On the basis of investigation conducted in this case, it was revealed that Sh. K. K. Jha was a resident of Ranaji Enclave, P. S. Najafgarh, Delhi and he used to procure mustard oil and other grocery items from Vinod General Store run by one Vinod Yadav. The adulterated mustard oil was purchased on 31.7.98 and 03.8.98 as there was function in the house of Sh. K. K. Jha and the said mustard oil was used for preparing food articles. Number of people were affected by vomiting and loose motions etc. Ms Pinky as well as Smt. Sushila i.e. daughter and wife of Sh.K.K.Jha underwent treatment due to consumption of adulterated mustard oil but they both ultimately died.
3. It is further the case of the CBI that accused Kamal Aggarwal, Dinesh Aggarwal and Vijay Aggarwal all S/o Sh. Gokul Chand (Hereinafter referred to as A1 to A3) are real brothers and M/s Kamal Oil Mills and Refinery, 33/9, Bawan Road, Samaipur, Delhi was managed by A1 as Proprietor and A2 was also working as Managing Director as well as looking after the affairs of the said mill. A3 was the Proprietor of M/s Vijay Trading Corporation 4110, Naya Bazar, Delhi. He was engaged in trading of oil business on behalf of Kamal Oil Mills as he was doing computer work as Punjabi Bagh, Delhi.
4. It is further the case of the CBI that accused No. 4 Pawan Kumar S/o Ram Bilas (hereinafter referred as A4 for the sake of brevity) was the Proprietor of Vikas Traders/Vikas Oil Mill, C69, Vishwas Park, Uttam Nagar, New Delhi (hereinafter referred as A1, 2 and 3 respectively for the sake of brevity) and Sushil Kumar, Accused No. 5, brother of Pawan Kumar (hereinafter referred as A5 for the sake of brevity) was also engaged in the business of procuring, processing as well as trading the mustard oil in Delhi.
5. Accused No.6 Mahesh Kumar Magan, (hereinafter referred as A6 for the sake of brevity) is the managing partner of M/s Krishna Oil Mill and Cotton Company, Modasa, Gujarat. As per the license issued to him by the concerned Authority, he was authorized to manufacture edible oil in his mill. He was also engaged in trading of such items in Gujarat as well as other places.
6. It is the case of the Prosecution that during the month of May, 1998, accused Kamal Aggarwal, Dinesh Aggarwal, Vijay Kumar Aggarwal, Sushil Kumar, Pawan Kumar and Mahesh Kumar Magan Lal along with some unknown persons in Delhi, Gujarat and other places entered into a criminal conspiracy among themselves with a view to adulterate mustard oil by various illegal acts and in pursuance of the same, mustard oil was adulterated by mixing Argemone Oil, Rice Bran etc, which resulted in death of number of persons and injury to others.
7. As per the chargesheet, it was further revealed during investigation that A6 used to purchase argemone (akhara/satyanashi/darudi) seeds on cheap rates of Rs. 7/ per kg, approximately, from various persons and thereupon used to manufacture argemone oil in his factory and the same was supplied to Vijay Trading Corporation, Naya Bazar, Delhi. It is alleged that in May/June, 1998, he had purchased seeds of argemone from various parties and after processing the same, oil was dispatched to Delhi in three tankers on 25.5.98, 02.6.98 and 10.6.98. The said argemone oil was received in the factory premises of A1 on 29.5.98, 04.6.98 and 12.6.98. Payment to the tune of Rs. 15,66,700/ was made through four demand drafts issued from the account of M/s Kamal Oil Mills and M/s Rajesh Trading Company from State Bank of Bikaner and Jaipur, Chandni Chowk, Delhi to M/s Krishna Oil Mill and Cotton Company, Modasa for supply of the argemone oil in the name of Vijay Trading Corporation, Delhi.
8. After necessary processing of argemone oil, rice bran oil with mustard oil, the same was sold by Kamal Oil Mill through broker M/s Babu Ram Gupta of Paschim Vihar, New Delhi to M/s Vikas Traders on 20.7.98 through tanker No. DHL4112 weighing 12 MT @ 4550 PMT. It is alleged that during this period A4 and A5 were also engaged in the business of sale of oil which they used to sell in in tins in brand names of Vandev, Tiranga, Laxmi etc. after labeling the tins with such brand names. It is alleged that accused Sushil Kumar and Pawan Kumar had sold such mustard oil to Shalu Enterprises, S. K. Kiryana Store, Gupta Stores of Sewak Park, Uttam Nagar, New Delhi and other traders of Uttam Nagar and areas of Delhi. Sh. Vinod Yadav of Ranaji Enclave allegedly purchased a tin of mustard oil from M/s S. K. Kiryana Store out of this stock. It is also the case of the Prosecution that from 22/23.7.98 various persons complained about sickness due to consumption of the said mustard oil and some of the traders/retailers complained to accused Sushil Kumar and Pawan Kumar and also returned the remaining quantity to M/s Vikas Traders.
9. On 19.7.98, A1 allegedly supplied one tanker of adulterated mustard oil to M/s Rampat Oil Mill, Jharoda Village, Najafgarh, New Delhi and on 20.7.98/22.7.98 one tanker of adulterated mustard oil to M/s Naresh Trading Company of Matiala New Delhi. M/s Rampat Oil Mill had returned the said oil to Kamal Oil Mill on 28.7.98 through tanker No. DLIG A 0998 weighing 11840 kg. It is further alleged that A1 and A2 having knowledge that the said oil was contaminated and has resulted in spread of epidemic dropsy, again sold the same to M/s K. S. Consupro India Pvt. Ltd. Delhi, who further sold this oil in tins with labels of Tamul Brand to M/s S. M. Enterprises, Guwahati and the sample tested by PFA at Guwahati showed positive results of argemone.
10. The adulterated mustard oil purchased by Naresh Trading Company from A1 on 22.7.98 was also returned to Kamal Oil Mill in tanker No. DIL 3044 on 31.7.98. Accused Vijay Kumar Aggarwal (A3) sent the said tanker containing adulterated mustard oil was sold to NDDB, Noida by A1, which was received by authorities of NDDB, Noida on 03.8.98.
11. It is further alleged that A4 and A5 marketed the mustard oil to one Govind Prasad of Shalu Enterprises, Gurdev Raj, Proprietor of M/s S. K. Kiryana Store and M/s Gupta Traders and others. The samples allegedly lifted from the premises of M/s Vikas Traders is stated to be show presence of rice bran, palm oil and argemone in mustard oil.
12. The chargesheet further discloses that Vinod Yadav, who is a retail shopkeeper, had purchased one tin of mustard oil from M/s S. K. Kiryana Store. Sh. K. K. Jha had purchased ½ kg. of mustard oil from Vinod Yadav on 31.7.98 and 2 kg on 03.8.98 on account of function in the family on 03.8.98. After consumption of same by the guests on 03.8.98, they suffered from various symptoms of dropsy and subsequently wife and daughter of K. K. Jha expired. It is alleged that A4 and A5 of M/s Vikas Traders after knowing that the oil is adulterated and has resulted in epidemic dropsy to many, collected back the adulterated oil from shopkeepers and intentionally and deliberately sold the same in one takner to NDDB, Patparganj, Delhi through broker M/s Prem and Company and in the name of M/s Shree Ganpati Traders, Ghaziabad on 25.7.98 in oil tanker No. DHL 3792. The Crime Branch, Delhi Police also lifted the samples from vacant plot near the premises of M/s Vikas Traders showing M/s Vikas Traders intended to destroy the mustard oil available in their possession to avoid detention of crime.
13. During the course of investigation, samples of oil were collected by Delhi Police from M/s Kamal Oil Mills on 29.8.98 and 01.9.98 and the same were got tested from Indian Institute of Chemical Technology (IICT) Hyderabad and as per their report dated 13.11.98 the said samples found adulterated with argemone. Further, the samples of til oil was found to be of rice bran oil with adulteration of argemone oil. It is also the case of the Prosecution that the samples taken at the premises of M/s Kamal Oil Mills, Vikas Traders showed high percentage of argemone oil indicating that they were purchasing the oil and mixing the same with mustard oil etc. which was being traded by Vikas Traders with different brand names resulted death of number of persons and injuries to many others. As per the chargesheet, samples of mustard oil lifted from the house of Sh. K. K. Jha also showed presence of argemone oil upon being tested.
14. The chargesheet was accordingly submitted by the CBI alleging commission of offence punishable under Section 120B r/w 272/273/304/324/328 IPC by A1 to A6 and commission of substantive offence under Section 272/273/304/324/328 IPC by above named accused persons.
Charge:
15. After the committal of the case and on the basis of the material on record and in the light of the submissions made, all the above named six accused persons were charged for offence punishable under Section 272/273/304/328 IPC r/w Section 120 B IPC vide order dated 09.8.99. The accused persons pleaded not guilty and claimed trial when the charge was read over and explained to them.
Prosecution Evidence:
16. As per the chargesheet, 158 witnesses were initially cited by the Prosecution and 12 more witnesses were cited by way of additional list of witnesses by the CBI. Out of the said witnesses, 112 witnesses were actually brought into the witness box.
17. The seed growers/farmers who allegedly supplied argemone seeds to A6 were brought into the witness box as PWs 1, 2, 4, 5, 6, 7 and 8. On going through the deposition of above named prosecution witnesses, it is apparent that none of them supported the case of the Prosecution when they were brought into the witness box. All the said witnesses infact deposed that they did not sell Argemone (Akhara/Satyanashi/Darudi) seeds to A6. Despite their lengthy crossexamination by Ld. Spl. PP for CBI, none of the aforesaid witness supported the case of the Prosecution and rather denied that they ever supplied Argemone (Akhara/Satyanashi/Darudi) seeds to A6.
18. In order to prove its case that Argemone oil was transported from M/s Krishna Oil Mills, Modasa, Gujarat by A6 to M/s Kamal Oil Mills in Delhi in three tankers, Prosecution relied upon the testimony of PWs 3, 7 and 14.
19. PW 14 Harjinder Singh Chhikara deposed that he is owner of M/s Chhikara Road Carrier and owns takner No. HR 12 7944 and HR 46 8644 and earlier also having tanker No. DIL 3044, which was sold by him in November, 1998. He further deposed that he was supplying tankers to M/s Kamal Oil Mills for transportation of oils and stated that two tankers bearing registration No. HR 12 7944 and HR 46 8644 were sent by him on the request of Kamal Aggarwal to Modasa and one tanker was driven by Randhir Singh and other was driven by Bablu. He exhibited the copy of the accounts regarding transportation of his tankers and the relevant entry in this regard is Ex. PW14/A. He also exhibited the receipts regarding payment received in respect of transportation of tankers vide Ex. PW14/B to PW14/D. He further deposed that he had also sent one tanker bearing No. DIL 3044 which was driven by Kuldeep. The two drivers who transported the oil from Modasa, Gujarat to Kamal Oil Mill in the tankers belonging to PW14 were examined as PW3 and PW17 respectively.
20. PW3 Ranveer Singh deposed that he was driver of tanker bearing No. HR 12 7944 owner by owned by Rajinder Singh Chhikara. On 23.5.97 on the instructions of Harjinder Singh Chikkara, he took the said tanker to Modasa, Gujarat. The tanker was empty and he got the tanker filled with oil from M/s Krishna Oil & Cotton Company, Modasa and brought it Delhi on 26.5.98 or 27.5.98 and took the tanker M/s Kamal Oil Mill, Delhi where it was unloaded and there was some shortage of 5055 Kg. He further deposed that on 01.6.98, he took the aforesaid empty tanker to Modasa and got the oil filled from M/s Krishna Oil Mills & Cotton Company and brought it back again on 04.6.98 to M/s Kamal Oil Mills, Delhi and there was shortage of about 90 kg at the time of unloading. He further deposed that on 08.6.98, he got the oil filled from M/s Krishna Oil Mills and Cotton Company, Modasa and brought it back to M/s Kamal Oil Mills, Delhi and shortage of 100 kg was detected while unloading.
21. Ld. Spl. PP for CBI drew my attention to the deposition of PW3 where he deposed that that tankers were filled from M/s Krishna Oil Mills, Modasa for being carried to M/s Kamal Oil Mills, Delhi. Samples were filled up and the covers and volves of the tanker were sealed so that no adulteration could be made in transit and material may remain intact.
22. PW17 Raj Singh also deposed that he drove tanker bearing No. HR 12 7944 on instructions of owner Rajinder Singh Chhikara and took the said tanker to Modasa in May, 98 and brought serhia oil from Modasa from Krishna Oil Mill and Cotton Company, Modasa to Kamal Oil Mill, Shahabad where tanker was unloaded.
23. As stated above, it is the case of the Prosecution that A6 used to purchase argemone (akhara/satyanashi/darudi) seeds and manufacture Argemone Oil in order to prove this fact three witnesses being employees of A6 were examined by the CBI as PW9, 11 and PW12.
24. PW9 Kunji Lal Kanti Lal Gandhi deposed that he is working as Superviser in M/s Krishna Oil Mills for last 25 years. He deposed that in Krishna Oil Mills and Cotton Company, Modasa the oil of seeds of groundnut, serhia, raidha is extracted and accused Mahesh Bhai is the owner of Krishna Oil Mill. However, witness denied having any knowledge if A6 has purchased 'Akhra' in 199596 and the same was unloaded in the mill. Witness was accordingly declared hostile and crossexamined by the prosecution. It is noticed that PW9 not only denied that A6 used to purchase akara also amongst darudi and satyanashi in his mill, but also denied that entry in the receipts were procured in the name of serhia for its identification instead of akara. In his crossexamination recorded on 15.9.99, the witness rather deposed upon seeing the copies of the receipts prepared by him for token of having receipt the same from M/s Krishna Oil Mills and Cotton Mills, Modasa that 'A' , 'S' and 'K' mentioned in the said receipts are three different qualities of serhia which he mentioned in the receipt means good quality of serhia 'achcha serhia' from 'A' quality serhia, by 'K' quality serhia, he means 'kala serhia'and from 'S' quality serhia the quality of oil expected is less than 'A' and more than 'K'. He categorically denied that 'A' indicate akra. The witness further deposed that his statement was recorded by Judicial Magistrate, Class I Modasa on 13.11.98 in Gujarati language.
25. It is noteworthy that witness further deposed that he was harassed by the Investigating Agency during the course of investigation and pressurized and threatened to say that they received akra and oil was extracted. He further deposed that when he was taken to Magistrate for recording of his statement, he was harassed by the CBI officials who were present at the time when his statement was recorded. He further deposed that he did not make a free and voluntary statement before the Magistrate.
26. PW11 Jayanti Lal was also working as Superviser for M/s Krishna Oil Mills and Cotton Company, Modasa for last 14 years. He deposed that purchasing of seeds is done by A6. He further deposed that he used to write the receipt of the seeds received in Krishan Oil Mill from different sources. 'Serhia' which was received in the mill was also being marked by them. He further stated that some receipts regarding receipt of serhia in their mill has been mentioned in receipts under his hand and after seeing entry of the some of the receipts, which pertain to receipt of serhia seeds in their mill from different party. The witness also deposed that two tankers were dispatched to Vijay Trading Corporation Delhi on 25.5.98 and 02.6.98 and another tanker was again sent to Vijay Trading Corporation, Delhi on 10.6.98 and it contain only serhia oil. Accordingly, this was also declared hostile by Prosecution and was crossexamined at length. He stated that A6 has told him that quality of serhia is marked as 'A' 'S' 'K'. He denied that 'A' stand for akra, argemone oil or that he ever made said statement before the police. He further denied akra, drudhi or satyanashi were extracted from their mill from 15.5.98 to 02.6.98. He further stated that his statement was recorded by the Judicial Magistrate, Class I, Modasa on 16.11.98 and was harassed at the instance of Investigating Agency at the time of the recording of the said statement.
27. Similarly, PW12 Indra Vadan Narmada Shankar Joshi working as Accountant in Krishna Oil Mill also failed to support the Prosecution case though witness deposed that as accountant he prepared bills of sale and purchase of seeds and entered the same in register Ex. PW12/A being a page of consignment register. He denied having extracted any other oil except serhia oil in their mill. PW12 exhibited various receipts dated 25.5.98, 02.6.98 and 10.6.98 being exhibited as Ex. PW12/B to PW12/E respectively. The oil was sent to M/s Vijay Trading through tankers from M/s Krishna Oil Mills and Cotton Company, Modasa, yet the witness turned hostile to the extent that he denied any other oil except Serhia was extracted in Krishna Oil Mill. On being confronted with statement recorded during investigation, witness denied having stated that oil was marketed as 'A', 'K' and 'S' or that 'A' stands for akra and 'K' for Kala Serhia. He also denied that Akhra was also sold as Serhia or that Akhra for its identification 'A' mark was written. The witness further deposed that he was pressurised and harrassed by the CBI to make his statement before Judicial Magistrate, Modasa.
28. PW10 Trilochan J. Trivedi, Astt. Commissioner, Food and Drugs Control Admn. Gujarat was also examined by the Prosecution, who deposed that in the year 1998, there was panic about epidemic dropsy in Gujarat. He further deposed that on receipt of directions, he visited Dhansura Cottage Hospital, Gujarat where it was revealed by the patients that they have developed symptoms of dropsy after consumption of Krishna Brand Groundnut Oil. The Prosecution relied upon this witness wherein he has stated that on enquiry it was noticed that this groundnut oil was manufactured by Krishna Oil Mills and Cotton Company. After which samples were directed to be picked up for test and analysis, however, no such samples were available.
29. PW13 Harish Mangalam deposed that she was working as District Supply Officer, Himmat Nagar, Sabarkanta, Gujarat since June, 1997 and identified A6 as owner of Krishna Oil Mills, Modasa. She deposed that Krishna Oil Mill was issued license of edible oil, copy of which is Marked X4 and stated that under the said license Krishna Oil Mills could manufacture items of edible oil covered under the E. C. Act. He also deposed that serhia is nonedible oil and on 05.9.98 she visited Krishna Oil Mill and carried out the through inspection of the mill and seized the record. There was serhia oil in the mill in over tank containing 8775 litres and one barrel was lying containing 180 litres of Serhia oil. On 05.9.98 another quantity of 2893 litres of Serhia oil was available there. The stock was seized and licence issued to Krishna Oil Mills was suspended for 90 days. The Prosecution vehemently stressed that the deposition of PW13 thus establishes that nonedible oil was found present in Krishna Oil Mills, Modasa even during the inspection conducted on 05.9.98.
30. In order to establish the registration of case under the provisions of the Food Adulteration Act, CBI relied upon the statement of PW 16 SI Kalu, PS Bhatiji Modasa Rural, Gujarat. He deposed that case FIR No. 132/98 under Section 3 & 7 Essential Commodities Act was registered at PS Modasa against A6, wherein it was alleged that A6 is the licence holder of edible oil and he had been manufacturing non edible oil in the name of M/s Krishna Oil Mill and Cotton Company. He deposed that he recorded the statement of witness and submitted his investigation report before the court.
31. PW52 Dahya Bhai Ganesh Bhai Baghela, Judicial Magistrate Class I deposed that on 13.11.98 he was posted as Judicial Magistrate Ist Class Modasa and recorded the statement of Jayanti Lal Magan Lal Suthar, Joshi Inderavardhan Narmada Shankar and Punji Lal Kanti Lal Gandhi, who had requested him to record their statements. He deposed that he gave them opportunity to think over it and warned them that the statement which they proposed to make before him could be read against them. On 16.11.98 they again appeared before him for getting their statements recorded. He recorded their statements and no one from CBI was present at that time. He exhibited the statement of the above named persons recorded under Section 164 CrPC and exhibited the same as Ex. PW52/1 to PW52/3 respectively.
32. In order to further prove its case that Kamal Oil Mills after mixing Argemone with the mustard oil further sold it to other persons including Rampat Oil Mills, Naresh Trading Company, Prosecution relied upon the deposition of PW55, 65, 82, 67 and 41.
33. PW55 Rajesh Kumar Gupta was partner in firm of M/s Babu Ram Gupta and Company, Oil Brokers dealing in edible oil. He deposed that he sold the mustard oil to Kamal Oil Mills to M/s Rampad Oil Mills, M/s Vikas Traders and Naresh Trading Company on 16.6.98 and the rates at which mustard oil of Kamal Mills was sold to these mills is exhibited as Ex. PW55/A. He further deposed that after delivery of the mustard oil and after receipt of payment on or about 23.7.98, Rampad Oil Mills, Naresh Trading Company complained about the rumour of dropsy due to consumption of mustard oil and asked him to return the oil. After these complaints, he contacted Kamal Oil Mills and informed them about the complaints of the parties and asked them to get the oil returned. He further deposed that he pressurized Kamal Oil Mills for the return of mustard oil purchased from them and stated that oil was returned to them by Rampat Oil Mills and Naresh Trading Company directly. It is pertinent to mention that witness deposed that he did not know whether the mustard oil was returned by M/s Vikas Traders to Kamal Oil Mills or not. He further deposed that he told Vikas Traders to return the oil to Kamal Oil Mills but they did told him that they had sold the same to NDDB through some other person.
34. PW92 Kuldeep, driver of tanker No.DIL 3044 deposed regarding transportation of mustard oil on 31.07.1998 from Naresh Trading Co. at the asking of Kamal Aggarwal. He further deposed that he got the tanker weighed at Dharam Kanta vide slip Ex.PW65/B for taking it to NDDB, Noida on 01.08.1998 and further deposed that the tanker was unloaded at NDDB, Noida on 03.08.1998 vide Ex.PW92/A.
35. PW65 Naresh Kumar Jain, owner of Naresh Trading Company deposed regarding purchase of tanker of mustard oil on 16.7.98 from Kamal Oil Mills through broker Babu Ram Gupta (PW55). He deposed that he got the tanker weighed from daramkata on 22.7.98, slip thereby is Ex. PW65/A. He deposed that mustard oil was converted into tins and supplied to 23 persons. However, he received complaints from the parties regarding rumor in the market regarding bad quality of mustard oil. He took back the mustard oil which he supplied to the parties after receiving the same. He again weighed and sent back the same to Kamal Oil Mills through the broker Babu Ram Gupta. He further deposed that weighing slip was seized by CBI vide Ex. PW65/A PW65/C. One of the shopkeepers who had purchased mustard oil from Naresh Trading Company namely Rajender Kumar Aggarwal was also examined by the Prosecution as PW82. This witness also deposed regarding return of the mustard oil to Naresh Trading Company on receipt of complaints.
36. PW67 Vinod Kumar was also examined by the Prosecution in order to prove the transportation of mustard oil from Rampat Oil Mills to Kamal Oil Mills on 27.7.98. He deposed being driver in Titu Transport, he drove tanker No. DL1G A0998 and transported to Rampat Oil Mills and get a tanker of mustard oil to be carried to Kamal Oil Mills on 27.7.98. He also deposed that he took another tanker to K. S. Consupro at the instance of Kamal Oil Mills where it was unloaded on 30.7.98.
37. Supervisor of Rampat Oil Mill, Sh.Ramesh Chand was brought into the witness box as PW41 and he deposed regarding receipt of oil from Kamal Oil Mills on 19.7.98 in vehicle No. 4112 and also deposed that oil was again sent back to Kamal Oil Mill in vehicle No. DL1G A0998 on 28.7.98. He exhibited the account book of Rampat Oil Mills from 01.4.98 to 01.8.98 as Ex. PW41/A containing the relevant entry regarding receipt of oil on 19.7.98 from Kamal Oil Mills as Ex. PW41/B. He also proved entry with regard to returning of oil to Kamal Oil Mill on 28.7.98 vide Ex. PW41/C.
38. PW-42 Vinod Kumar, Proprietor of Sh.Ganpati Traders deposed regarding purchase of one tanker of mustard oil on 23/24.07.1998 through M/s Prem & Co. for delivery to NDDB, Patparganj, New Delhi. He also deposed that he came to know that the said oil was received from M/s Vikas Oil Mills and proved the relevant entries of the accounts books as Ex.PW-42/A, Ex.PW-42/B & Ex.PW-42/C. PW-71 S.Gangupadhaya, Sr.Executive Accountant, NDDB, New Delhi deposed regarding receipt of material and release of payment to M/s Vijay Trading Corporation, Delhi towards supply of mustard oil at NDDB during June, 1998 to August, 1998.
39. During the course of arguments ld. SPP also relied upon the deposition of PW-108 Govind Rajan who was posted as Asstt. Executive with NDDB in the year 1998-99 and further he was posted as Manager Quality Control with Dhara Vegetable Oil and food Company Ltd. Rajkot. He deposed that he used to assist Sh.T.N.Murti, who was working as Sr. Scientist with NDDB at Anand and exhibited two reports Ex.PW-107/1 & Ex.PW-107/2. He further stated that Mr.Nagarajan, the Quality Control Officer at Noida had brought the samples to Mr.T.N.Murti for analysis, which were analyzed and it was concluded that Argemone oil was present in the samples. However, on going through the record of the case, I find that there is no evidence on record to establish as to from whom the said sample was taken for which the report Ex.PW-107/1 was made. Moreover, in his cross examination PW-108 also stated that he does not know any Nagarajan who had taken sample in this case ExPW-107/1. PW-107 was examined by the prosecution to establish the handover of the said two reports by Sh.T.N.Murti to CBI vide seizure memo Ex.PW-107/A. PW-110 Khayal Singh deposed regarding handover of the Quality Control Manual to the CBI, CGO Complex, Lodhi Road as Ex.PW-110/A.
40. Besides the aforesaid witnesses, the prosecution also examined various witnesses of investigation viz., the officers of the Crime Branch who were initially associated with the investigation of the case and were examined by the prosecution as PW-69 ASI Anand Singh, PW-89 SI Pritam, PW-90 Insp.Nand Kumar & PW-94 Rajbir Singh.
41. The officials of the CBI include PW-95 Insp.R.K.Jajeshwari, PW-96 Insp.Gurmeet, PW-97 DSP Ram Chander , PW-98 S.K.Shah, Asstt. Commandant, PW-99 T.P.Jha, Addl. SP, PW-100 Insp. A.K.Pandey, PW-101 Amit Vikrma Bhardwaj, SI & PW-102 Kanshi Ram Khem Chand Bhai, Insp., PW-11 Insp.R.V.S.Lohmor & PW-112 Chief Investigating Officer Sh.S.C.Tiwari.
42. PW-103 HC Krishna, while posted as Duty Officer at PS Najafgarh had registered the case FIR No.496/98 Ex.PW-103/A. The Circle Insp. of Police Baird Distt. Sabarkanta, Gujarat Kanshi Ram Khem Chand Bhai was examined as PW-102, who deposed that the case under Section 328/278/272/273 IPC and Section 7 & 16 of Prevention of Food and Adulteration Act was registered at PS Dhanshura, Distt. Sabarkanta, Gujarat against Mahesh Bhai Magan Lal, Proprietor of Krishna Oil Mills and Cotton, Modassa and Ors.
43. Sh.K.K.Jha, the husband and father of deceased Smt.Sushila and Ms.Pinki respectively was examined by the prosecution as PW-20, who deposed that there was a birthday party of the child of his daughter on 03.08.1998 at the house of Smt.Vibha Devi (PW-44), who brought some items on 02.08.1998 and mustard oil was purchased from the shop of Vinod Yadav (PW-47) on 03.08.1998. He deposed that food items viz., Puri's and Matar Panner were prepared in that Mustard Oil and some persons started vomiting and loose motions after taking food. About 15 persons were from his company and others were from his neighbourhood in that party. He further deposed that he maintained a Diary Ex.PW-20/A, in which the entries about the articles purchased from the shop of Vinod Yadav were done.
44. Smt.Vibha Devi PW-44 deposed that she had purchased Kriyana items from the shop of Vinod Yadav (PW-47) and proved the entries in the name of Avdesh on the back of page 73 & 74 of register mark B, back of page 11 in the name of Pankaj in register mark A and entries of diary Ex.PW-20/A. She also deposed that the oil which was purchased on 03.08.1998 was purchased from the shop of Vinod Yadav in which the food items were prepared and that all the persons who came on that occasion ate the food and started vomiting and complained of loose motions. Her family members also suffered from vomiting and loose motions after consuming the food items prepared in the said oil. Some of the persons who attended the said birthday party at her house on 03.08.1998 were examined as PW18 Jogin, PW-19 Ranjan Poddar & PW-27 Arun Kumar.
45. In order to establish the effect of consumption of adulterated mustard oil, the prosecution also relied upon the deposition of PW-68 Dr.Ravinder Amraik who deposed that he knows Avdesh Kumar of Ranaji Enclave, New Delhi who used to treat his wife Smt.Vibha and daughter Simi. He deposed that in the month of August, 1998 patients Vibha, Simi and few other related to them came to him for treatment. He treated Vibha and Simi who were suffering from vomiting, loose motions and fever. Their relatives namely Pinki and Sushila had also come to his clinic, but they were referred to Govt. hospital as their condition was such which could not be treated in his clinic.
46. In the light of the aforesaid deposition, learned prosecutor has vehemently argued that the effects of the dropsy have been duly established by way of deposition of PW-68 Dr.Ravinder. Per contra, learned defence counsels submitted that during the cross-examination, PW-68 he did not stated these facts to the Investigating Agency during the course of Investigation. Though PW-68 admitted in his cross examination that he had stated in his statement before CBI that Smt. Sushila, mother-in-law of Avdesh Kumar was never brought to his clinic for treatment. Further he admitted in his statement that he had stated in his statement to CBI that on 04.08.1998 he did not give any treatment at his clinic to Ms.Pinki and her mother Smt.Sushila.
47. The MLC of the Pinky was proved by PW-38 Dr.Srikant Vaish of DDU Hospital. PW-54 Dr.Vipin Saxena proved the OPD slip of Pinki dated 18.08.1998 and the death slip dated 24.08.1998 and deposed that he had diagnosed that she was suffering from dropsy. However, it was pointed out by learned defence counsel that in his cross-examination recorded on 11.01.2002 PW-54 Dr.Vipin Saxena categorically deposed that his answer to the question regarding the probable cause of death of Ms.Pinki was only probable cause and he had not done any confirm diagnosis for that.
48. The Post Mortem report of the deceased Sushila and Pinki was exhibited by PW-64 Dr.Sarvesh Tandon of Aruna Asaf ali Hospital Subzi Mandi Murtuary, Delhi which are exhibited as Ex.PW-64/A & Ex.PW-64/B respectively. However, it is apparent on going through the deposition of PW-64 as well as the aforesaid post mortem reports that the cause of death was kept pending as the viscera of the deceased had been sent for expert analysis. The viscera reports of the deceased Ex.PW-112/D2 however establish that they tested negative for common poisoning.
Defence Evidence:-
49. The accused persons also examined four witness in their defence comprising of DW1 Sh.V.P.S.Chaudhary is a Food Inspector, PFA, Govt. of NCT of Delhi, DW2 Sh.S.K.Nagpal, Local Health Authority, Directorate of PFA, NCT of Delhi, DW3 Ashoken M. and DW4 Jayesh Bhatnagar, both employees of Vijay Aggarwal.
50. Learned defence counsels in order to prove the innocence of the accused persons relied upon the testimonies of DW1 & DW2 both being statutory authorities as per the Prevention of Food Adulteration Act, 1954 argued that both these DWs proved that the samples of same mustard oil lifted from premises of Kamal Oil Mills of A1 on 29.08.1998 by the Crime Branch Investigating Team were simultaneously found to be Argemone negative and in view of this fact the entire case of the prosecution that the present accused persons adulterated mustard oil with Argemone oil and/or rice bran oil and then supplied the same in market and consumption of the same caused the death of Smt.Sushila and Ms.Pinki is completely falsified.
Arguments & Contentions : Findings & Reasons
51. I have considered the detailed arguments advanced by the learned defence counsel representing the six accused persons and Sh.Y.K.Saxena, ld. Special PP on behalf of the CBI.
52. The prosecution relied upon the deposition of PW3 Ranbir Singh & PW14 Harjinder Singh Chhikara, driver and owner of tankers No.HR127944 and HR468644 respectively in support of his arguments that the oil was transported from Krishna Oil & Cotton Company Modasa to M/s Kamal Oil Delhi in the aforesaid tankers. He further relied upon the depositions of employees PW11 & 12 and argued that in their statements recorded under Section 164 Cr.PC Ex.PW52/1 & 54/3 respectively both the witnesses stated that the Argemone Oil was extracted in Krishna Oil Mill after the seeds were supplied by the farmers to the mill.
53. Ld. Special PP further argued that the PW60 Sh.Om Parkash Bansal stated that M/s Kamal Aggarwal is having four firms namely Kamal Oil Mills, Vijay Trading Corporation, Dinesh Oil Traders and Rajesh Trading Company, thus establishing the nexus between the accused persons. He further submitted that PW30 Sh.Lorinda Ram, owner of the printing press namely M/s Rastriya Printing Press deposed that one Pawan Kumar proprietor of Vikas Traders, Vishwas Park, Uttam Nagar, New Delhi came to his press and brought to him the block of Lakshmi Brand Mustard Oil and lables for printing and ordered to print 10,000 copies of the said lables of Lakshmi Branch Mustard Oil. It was submitted that this piece of evidence clearly proves the case of the prosecution inasmuch as the adulterated mustard oil was purchased by the family of the deceased in the brand name of Lakshmi Brand Mustard Oil and it was the same oil which had been marketed by the accused Nos. 4 & 5 after having received the same from accused No.1 to Accused No.3.
54. Ld. Special PP further drew my attention to the statement of PW77 Rajesh Kumar Aggarwal, who deposed that he was working with Kamal Oil Mills and Vijay Trading Corporation which were the firms of Kamal Aggarwal. He further deposed about the opening of the bank account in the State Bank of Bikaner which was introduced by Mr.Kamal Aggarwal, proprietor of Kamal Oil Mills and was opened on 20.02.1998.
55. Ld. SPP further submitted that statements of PW74 Vijay Kumar Jain and PW65 Naresh Kumar Jain clearly established that the Mustard oil of Vandematram Brand was received from Kamal Oil Mills and the tins were further supplied to the shopkeepers. The witness further deposed regarding return of the oil to Kamal Oil Mills on receipt of complaint by the customers. He submitted that this proves that the oil which was supplied to Kamal Oil Mills was of bad quality and was adulterated and it was for this reason it was returned by various shopkeepers as deposed to by PWs 74 &
65. It was further submitted on behalf of the prosecution that PW63 Dinesh Chand Sharma deposed regarding the oil tankers received from Vijay Trading Company on 03.08.1998 at NDDB. PW56 Girdhari Lal, the driver of the auto rickshaw deposed regarding supply of mustard oil from Vikas Traders to other traders including supply of mustard oil to S.K.Kiryana, Vinod Gupta and Shalu enterprises.
56. Learned Spl. PP further highlighted that as per this witness, a tanker containing mustard oil was received from M/s Kamal Aggarwal and the same was unloaded and then packed in tins in Lakshmi brand, Tringa and Shriram and Vande Matram and on 21.07.1998 the tins containing mustard oil were further supplied to Aggarwal etc. and the same was returned on 22.07.1998 upon receipt of the complaint. Similarly, PW49 Harish Kumar deposed regarding the ownership of two oil tankers bearing Nos.DHL 4112 and DHG 1491. He deposed regarding transport of mustard oil from M/s Kamal Oil Refinery for Rampath Oil Mills and Vikas Traders on 20.07.1998.
57. The prosecution also relied upon the statement of PW50 Mohd.Maqbol Alam @ Nasir Hussain who was the driver of the aforesaid tanker No.DHL 422 and who deposed that his associate Mansoore Alam used to drive tanker No.DHG 149. Similarly, further as per the prosecution PW55 Rajesh Kumar Gupta, partner of M/s Baburam Gupta & Co., Oil Broker deposed regarding supply of mustard oil to NDDB, M/s Kamal Oil Mills, M/s Vikas Oil Mills, Rampat Oil Mills, Naresh Trading Co. & Ors. in his examinationinchief. Relying upon the aforesaid witness, the prosecution submitted that allegations against all the accused persons stand duly proved on record and that there is sufficient evidence to establish the existence of criminal conspiracy under which the accused persons adulterated mustard oil with Argemone Oil intending to sell the same and sold it, knowing it to be noxious or having reasons to believe that the same is adulterated mustard oil and circulated the same in the market through their agents/brokers which was subsequently purchased by the family of Sh.Krishan Kumar Jha which led to the demise of Smt.Sushila Devi and Ms.Pinki.
58. On the other hand, learned defence counsels vehemently opposed the prosecution case while submitting that the prosecution has miserably failed to prove the allegations against the accused persons.
59. The arguments on behalf of defence were opened by Sh.Y.K.Kapoor, learned counsel for Accused No.6, who submitted that as per the prosecution case Accused Mahesh Kumar Magan Lal Shah (A6), was having a large scale business in Gujrat used to manufacture oil i.e. Argemone oil in his factory namely M/s Krishna Oil and Cotton Company, Modasa Distt. Sabarkantha Gujarat where allegedly the Argemone seeds were purchased by A6 and the oil extracted there from and subsequently supplied to Kamal Oil Mills in various tankers.
60. It was submitted by learned counsel for A6 that PWs 1,2,4,5,6,7 & 8 were examined on record by the prosecution in order to establish its case regarding sale of Argemone (Akhara/Satyanashi/Darudi) seeds to A6. A perusal of the depositions of the aforesaid witnesses would, however, reveal that none of the said witnesses supported the case of the prosecution and in fact all of them have turned hostile. They failed to support the case of the prosecution and deposed that Akhara/Satyanashi/Darudi seeds were not grown in their field or that the said seeds were not supplied by them to the Krishna Oil Mills and denied that A6 Mahesh Bhai had purchased Akhara seeds from them.
61. In the light of their testimonies, learned defence counsel representing A6 submitted that the very source of the alleged conspiracy amongst accused persons has not been established by the prosecution since there is no evidence on record to the effect that A6 used to purchase Akhara seeds from the farmers at cheap rates for extracting Argemone oil from them.
62. Learned counsel for the A6 further submitted that as per the chargesheet, it is the case of the CBI that accused No.6 was having a licence issued to him by the State Government, as per which he was authorized to manufacture edible oil in his mill. It was further revealed during investigation that accused No.6 used to purchase Argemone (Akhara/Satyanashi/Darudi) seeds on cheap rates of Rs.7 per kg approx from various persons and used to manufacture Argemone oil in his factory and the same was supplied to Vijay Trading Corporation, Naya Bazar, Delhi.
63. The chargesheet further discloses that in the month of May/June, 1998, Accused No.6 purchased seeds of Argemone from various parties and after processing the same, oil was dispatched to Delhi on 25.05.1998, 02.06.1998 and 10.06.1998. The aforesaid Argemone Oil was received in the factory premises of Kamal Aggarwal on 29.05.1998, 04.06.1998 and 12.06.1998. The payments to the tune of Rs.15,66,700/ was made through four Demand Drafts.
64. It was submitted that the prosecution has however, failed to establish its case that it was Argemone Oil which was dispatched from the factory of accused No.6 at Modasa to the factory premises of accused No.1 in various tankers after processing the Akhara seeds and extracting Argemone oil there from. In this regard learned Counsel for A6 drew my attention to the deposition of employees of A6 which was brought into the witness box by the prosecution. PW9 Kunji Lal Kanti when brought into the witness box deposed that he was working as Supervisor in Krishna Oil Mills for the last about 20 years. He deposed that oil of seeds of groundnut, sheriya, Raida are extracted in Krishana Oil Mills.
65. Further, on going through his deposition, it is apparent that the witness failed to support the case of the prosecution to the extent that accused No.6 used to purchase Akhara seeds in 199596. He was declared hostile by the prosecution and despite lengthy crossexamination he denied having stated to the police that Akhara seeds were purchased in the year 199899 or entered in book No.1 of 199899 'A' as Akhra, 'S' as Serhia and 'K' as Kala Serhia. When the witness was further cross examined by the prosecution, he explained that in the various receipts prepared by him in token of having received the seeds in Krishna Oil Mill, 'A' has been written which implies A quality of Serhia, by 'S' it means S quality of Serhia and by 'K' it means Kala Serhia. Rather, the witness further stated that though his statement was recorded under Section Cr.PC by the concerned Judicial Magistrate but that was not his voluntary statement admitting of having received Akhara in the mill and extracting of oil therefrom.
66. Similarly, PW11 Jayanti Lal who was also brought into the witness box turned hostile and failed to support the case of the prosecution to the extent that Argemone oil was extracted in Krishna Oil Mill, Modasa after having received Akhara seeds. He also denied that he ever stated to the police that in the receipts 'A' stood for Akhara/Argemone. This witness also alleged that he was harassed by the Investigating Agency and that his statement under Section 164 Cr.PC was recorded under pressure.
67. PW12 Indra Vandan Narmada Shankar Joshi, who was working as an Accountant in Krishna Oil Mill was examined by the prosecution though exhibited the relevant consignment register maintained in their Mill Ex.PW12/A failed to support the case of the prosecution that Argemone oil or Akhara seeds were also purchased in their mills. He also denied that accused No.6 Mahesh Bhai had told him that in the receipt of Akhara, Serhia should be mentioned while writing 'A' in front of Serhia for the purpose of identification.
68. On going through the statements of PWs 9,11 & 12, it is therefore clear that the prosecution case, to the extent that Akhara seeds were received in Krishna Oil Mill and the Argemone Oil extracted there from, does not stand proved on record. The prosecution has also failed to establish by way of testimonies of PWs 9 to 11 that different identification marks were entered in the receipts and registers maintained by Krishna Oil Mill for the purpose of identifying Argemone Oil or Akhara seeds. It has also not been established that letter 'A' written in the said receipts/register implies Argemone or Akhara oil.
69. The owner and the driver of the tankers in which Argemone Oil was allegedly brought from M/s Krishna Oil Mills, Modasa to Kamal Oil Mills was also examined as PWs 3, 17 & 14. Learned defence counsel submitted that as per the statement of PW3, shortage of oil was detected when the tanker was unloaded in M/s Kamal Oil Mill at Delhi. He submitted that in the light of his aforesaid evidence the possibility of tampering cannot be ruled out. My attention was drawn towards the examination of PW3, wherein he stated that he cannot say whether the tanks installed in the mills were empty or already had some stock in them which were unloaded in the said tanks installed in M/s Kamal Oil Mill. Learned defence counsel submitted that the prosecution has not brought any evidence on record to show as to whether the tanks at Krishna Oil Mill were empty while unloading from Modasa or there may be some oil in the said tanks and the alleged administration of Argemone oil cannot be attributed to accused No.6 as alleged.
70. It was also submitted that as per PW17 Raj Singh he brought Serhia Oil in tanker No. HR468644 in the month of May, 1998 from Krishna Oil Mill & Cotton Co., Modasa to Kamal Oil Mill at Delhi. It was submitted that in his examinationinchief itself this witness has clearly deposed that he has brought the Serhia Oil to Kamal Oil Mills and thus the case of the prosecution that Argemone oil was transported from Modasa stood clearly demolished in the light of his statement.
71. PW14 Harjinder Singh, the owner of the tankers also failed to depose anything relating to transportation of Argemone Oil from Modasa to Kamal Oil Mills. Learned Defence Counsel submits that he only deposed regarding the payment received by him for transportation of the tankers and stated about the money so received from Kamal Aggarwal for the work done by him. Learned counsel for A6 thus submitted that the prosecution did not bring on record any incriminating evidence to establish whether A6 purchased any Akhara/Argemone seeds from the farmers or that they extracted Argemone oil therefrom at Krishna Oil Mills at Modasa or that Argemone oil was transported in three tankers to the Kamal Oil Mill at Delhi in the month of May/June, 1998 as alleged. He further stated that the statements of the prosecution witnesses recorded under Section 164 Cr.PC were not recorded in accordance with law and cannot be said to be admissible in evidence. It was submitted that learned Judicial Magistrate PW52 did not comply with the provisions of Section 164 (2) Cr.PC while recording the statements of prosecution witnesses under Section 164 Cr.PC. In this regard reliance has been placed on the following judgments with respect to effect of noncompliance of provisions of Section 164 (2) Cr.PC:
a) Sanki Chiba & Anr. vs. State of Arunachal Pradesh, 2008 Crl.LJ 1734.
b) State of Rajasthan vs. Dorbara Singh, 2000 Crl.LJ 2906.
c) Tulsi Singh vs. State of Punjab, AIR 1996 SC 3477.
d) Preetam vs. State of Madhya Pradesh, AIR 1997 SC 445.
e) Shivappa vs. State of Karnataka, AIR 1995 SC 980.
f) Maharaj Deen & Anr. vs. The State, 1996 Crl.LJ 506.
72. Learned counsel Sh.Y.K.Kapoor representing A6 further argued that the statement under Section 164 Cr.PC is not a substantive piece of evidence and no conviction can be based on the same.
73. While countering the arguments of the learned prosecutor that the statements exhibited as PW52/1 & 52/3 can be read in evidence, learned counsel for A6 submitted that no reliance can be placed upon the statement under Section 164 Cr.PC and no conviction can be based on the same statement. He had further relied upon the following judgments in support of said arguments:
a) Bhanu Pratap Gangwal vs. State of UP, Manu/UP/0971/2077
b) Puran s/o Sri Ram vs. The State of Punjab, AIR 1953 SC 459.
c) Javvadhi Sosha Rao & Ors. vs. State, 1994(2)ALT(Crl)624.
d) Manik Gazi vs. Emperor, AIR 1942 Cal 36.
74. During the course of arguments, learned counsel for A6 further drew my attention to the statement of PW94 Insp. Rajbir Singh, who was posted in Crime Branch of Delhi Police in the year 1998. Admittedly, he was initially assigned the investigation of this case after investigation was transferred to the Crime Branch from the office of PS Najafgarh. As per the prosecution case PW94 had seized certain registers from M/s Kamal Oil Mill viz., Ex.PW94/1 to Ex.PW94/5 vide seizure memo Ex.PW90/1. It is the case of the prosecution that in register Ex.D15 at pages 45 to 45 shows that Argemone oil was produced from M/s Krishna Oil Mills at Gujarat. Ld. Spl. PP argued that the word 'A' oil implies that Argemone oil was purchased by Kamal Oil Mill from Krishna Oil Mill of Accused No.6.
75. On the other hand learned counsel for A6 argued that mere exhibiting of a document does not mean that the document itself is proved. It was submitted that entries in the books of Accounts under Section 34 of the Indian Evidence Act are not admissible merely on stand alone basis and the same have to be proved in accordance with the relevant statutory provisions. It was further submitted by the learned defence counsel that the mere fact that the original document i.e. Ex.PW94/1 was produced by the prosecution and exhibited on record does not imply that the contents thereof were also proved unless either of the documents were proved by the witness who stepped into the witness box and explained the contents thereof. In support of his aforesaid arguments, he relied upon the judgment titled as Abdul Rahim @ Guddu vs. Sheikh Qayyum reported as Manu/MM/1295/2009 ,wherein it has been laid down by the Single Bench of Bombay High Court that "It is however, rightly submitted on behalf of the respondent that exhibition of document is for the purpose of making it for identification and mere exhibition of it would not amount that the contents of the documents are proved to be true".
76. He also relied upon another judgment titled as CBI vs. V.C.Shukla reported as AIR 1998 SC 1406 in support of his aforesaid arguments that mere exhibiting of the register maintained by M/s Kamal Oil Mill would not be sufficient to establish that the entry 'A' Oil in fact imply Argemone Oil, as alleged by the prosecution.
77. I have considered the arguments in the light of judgments relied by learned defence counsel and I fully subscribe to the said arguments that there is not even an iota of evidence to the effect that the word 'A' Oil which is found written in D15 at pages 44 & 45 which in fact stands for Argemone Oil. I also find myself in agreement with the submission of learned defence counsel that the mere fact that the said registers were seized and exhibited by the erstwhile Investigating Officer of the Crime Branch and was exhibited on record, would not be sufficient per se to prove entries made in the said register to establish the prosecution case that the entries in the said register as 'A' Oil in fact stands for Argemone Oil.
78. It may also be relevant to mention at this juncture that this fact was not put to the accused persons while recording their statements under Section 313 Cr.PC and thus cannot be used as incriminating piece of evidence against them. Further, in view of the fact that PWs 1,2,4,5,6,7 & 8 turned hostile and also in the light of the deposition of the said PWs, there is not even an iota of evidence on record to establish that Argemone/Akahara/Darudi seeds were purchased by A6 or that after extracting Argemone Oil, it was transported to Kamal Oil Mills from Modasa, Gujarat.
79. During the course of arguments reliance was placed on the well known judgment of Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharastra reported as (1984) 4 SCC 116, wherein it has been laid down as under:
"As the circumstances were not put to the appellant in his statement under Section 313 Cr.PC they must be completely excluded from consideration because the appellant did not have any chance to explain them."
80. To the similar effect two more judgments have also been cited which are titled as Parsuram Pandey vs. State of Bihar reported as 2004, Crl.LJ 4978 SC and Sudhakar Sarangi vs. State of Orissa reported as 1992 Cr.LJ 1866.
81. Thus in the light of the aforesaid case law, I find that the position is clearly well settled that it is imperative upon the court to examine the accused person under Section 313 Cr.PC for the purpose of enabling him to personally explain any circumstance appearing in evidence against him and if such opportunity is not afforded, the said incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of convicting the accused.
82. In the present case, admittedly it was never put to the accused persons either to A6 or to A13 that the word 'A' oil as mentioned in D15 exhibited as Ex.PW94/1 at pages 44 & 45 stood as Argemone Oil and thus the said fact can now be read against the accused as an incriminating piece of evidence. Admittedly, no employee of Kamal Oil Mill came forward to explain that the import of Letter 'A' is for Argemone oil as alleged by the prosecution.
83. Arguments were also advanced by Sh.Pramod Jalan, learned counsel representing accused No.1 to 3, who pointed out that in fact accused No.1 had purchased Sheria Oil from A6 and not Argemone Oil as alleged by the prosecution. It was further submitted that the payment was made by A1 to Krishna Oil Mills & Cotton Co. Modasa of A6 for Sheria oil and all documents of sale and transportation were of Sheria Oil and in fact, Sheria Oil only was brought to the premises of Kamal Oil Mills of A1.
84. In these circumstances and in the light of the above discussion, I find myself unable to subscribe to the submissions of the Prosecution that it is the Argemone Oil which was supplied by A6 to the Kamal Oil Mills and the entry to this effect was made by Kamal Oil Mills in register Ex.PW94/1 as Argemone oil.
85. The case of the CBI, as is further disclosed from the charge sheet, is that upon receipt of Argemone oil in tankers from Modasa it was mixed with mustard oil in the factory premises of Kamal Oil Mills and after necessary processing/mixing of Argemone oil/rice bran oil with mustard oil the same was sold by M/s Kamal Oil Mill through broker M/s Babu Ram Gupta of Paschim Vihar, New Delhi to M/s Vikas Traders on 20.07.1998 through tanker No.DHL4112 weighing 12 MT @ 4550 MT.
86. During the course of arguments learned defence counsel for A13 produced "The Wealth of India" A dictionary of Indian Raw Materials and Industrial Products - Raw Materials (Vol.V : HK) published by the National Institute of Science Communication and Information Resources, CSIR, New Delhi and referred to Page77 thereof wherein it is mentioned that 'Sheria Oil' is also known as 'Ambari Oil' in Hindi. He further pointed out that as per this publication, refined Sheria Oil is also edible and may be used as salad oil and for cooking (page82). He argued that if Sheria Oil is also referred to as Ambari Oil, it may be well presumed that the word 'A' Oil as Ex.PW94/1 may imply Sheria Oil.
87. Learned defense counsels further argued that had there been any conspiracy amongst the accused persons under which A13 sold adulterated mustard oil to A4 & 5 of Vikas Traders, the same would not have been sold through any broker as is the case of the prosecution itself. The fact that the transaction was made through a broker, is sufficient in itself to demolish the theory of a criminal conspiracy as sought to be set up by the CBI.
88. It is further the case of the prosecution that on 19.07.98 the Accused No.1 Kamal Aggarwal had supplied one tanker of adulterated mustard oil to M/s Rampat Oil Mill, Jarodha Village, Najafgarh, New Delhi and on 20.07.1998 / 22.07.1998 one tanker of adulterated mustard oil to M/s Naresh Trading Co. of Matiala, New Delhi and that M/s Rampat Oil Mill had returned the said oil to Kamal Oil Mill on 28.07.1998 through tanker No.DL1GA 0998. It is further alleged that accused Kamal Aggarwal and Dinesh Aggarwal having knowledge that the said oil was contaminated and have resulted in spread of epidemic dropsy, again sold the same to M/s K.S. Consupro India Pvt. Ltd. Delhi, who sold this oil in tins with labels of Tamul Brand to M/s S.M.Enterprises, Guwahati and sample tested by PFA at Guwahati showed positive result of Argemone.
89. It is further the case of prosecution that adulterated oil purchased by Naresh Trading Co. on 22.07.1998 was returned to Kamal Oil Mill in tanker No.DIL 3044 on 31.07.1998 and accused No.3 Vijay Kumar Aggarwal was trading on behalf of Kamal Oil Mill and the said tanker containing adulterated mustard oil was was sold to NDDB, Noida which was received by the authorities of NDDB, Noida on 03.08.1998.
90. Learned defence counsel Sh.Pramod Jalan, representing Accused No.1 to 3 and learned defence counsel Sh.Rashid Hashmi representing accused No.4 & 5 submitted that the aforesaid allegations of the prosecution have not been established on record.
91. In this regard, my attention was drawn towards the deposition of PW65 Naresh Kumar Jain, owner of Naresh Trading Company who deposed that he returned the mustard oil to A1 not because the oil was adulterated but on the basis of general rumours in market.
92. It was further submitted that the mustard oil supplied by A1 in the name of Vijay Trading Corporation to NDDB, Noida on 03.08.1998 was also found to be Argemone negative as per prosecution evidence itself. He further argued that the mustard oil supplied to NDDB, Noida by A1 in the name of Vijay Trading Corporation was found to be Argemone negative and also meeting other specifications and the payment was released by NDDB, Delhi in this regard. Reliance was placed on the statement of PW63 Dinesh Chand Sharma who was the Production Executive at M/s Atash Industries (P) Ltd., which had an agreement with NDDB for packing Dhara Brand Oil deposed that on 03.08.1998 a tanker No.DIL 3044 was received in their company from Vijay Trading Co. The sample was lifted from the said tanker. He also deposed that, "it is correct that as per Ex.PW63/B, the test for the Argemone was conducted and was found negative".
93. PW71 S.Gangopadhyaya, Senior Executive Accounts, NDDB, Delhi also stated in his deposition that a bill of the supplier is certified for payment by the concerned oil packing station NDDB after the oil is tested by the concerned oil packing station. He also admitted that the payment of Bill No.49 dated 01.08.1998 of Vijay Trading Co. was settled after going through the due procedure in NDDB.
94. Learned defence counsel also submitted that mustard oil which was returned by Rampat Oil Mills to A1, which in turn supplied to M/s K.S.Consumpro Pvt. Ltd. also found to be Argemone negative as per the evidence of the prosecution itself. In this regard reliance was placed on the deposition of PW53 Gopal Garg, Director of K.S.Consumpro Pvt. Ltd., who deposed that his firm used to pack mustard oil Tamul Brand which is 'AGMARK'. He also admitted that 117.90 quintals of mustard oil was unloaded in his factory and the payment for the same at the rate of Rs.4,400/ per quintal was made to Kamal Oil Mills. It was also submitted that the Tamul brand mustard oil which was supplied by K.S.Consumpro Pvt. Ltd. to S.M.Enterprises, Gauhati was also found to be Argemone negative.
95. Learned defence counsel further relied upon the statement of PW86 Hiren Gogoi, Senior Food Inspector, Gauhati, Assam in support of his arguments in which PW86 admitted that as per Ex.PW86/5 no Argemone oil was found in the sample which was lifted on 29.08.1998 from S.M.Enterprises, Gauhati.
96. On the basis of the aforesaid pieces of evidence, learned defence counsel thus vehemently argued that the case of the Prosecution that adulterated mustard oil was supplied in various tankers to M/s Rampat Oil Mill and Naresh Trading Company after being returned to Kamal Oil Mill stands demolished.
97. As per the chargesheet, it was further revealed during investigation that A4 and A5 marketed mustard oil to Govind Prasad of Shalu Enterprises, Gurdev Raj, Proprietor of M/s S. K. Kiryana Store and M/s Gupta Traders amongst the others. It is alleged that samples of oil lifted from the premises of M/s Vikas Traders show presence of Rice Bran, Palm oil and Argemone in the mustard oil. Further, one Vinod Yadav, who is a retail shopkeeper purchased one tine of mustard oil from M/s S. K. Kiryana Store, out of stock supplied to him by A4 and A5.
98. It is further the case of the Prosecution that Vinod Yadav who had purchased mustard oil from M/s S. K. Kiryana Store sold ½ kg of mustard oil to K. K. Jha on 31.7.98 and 2 kg of mustard oil on 03.8.98. After consumption by the guests, they suffered from various symptoms of dropsy and ultimately Ms Pinky and Smt. Sushila, daughter and wife of K. K. Kha respectively died and many other persons were affected by the consumption of the oil. It is further alleged that A4 and A5 of M/s Vikas Traders after knowing that the oil is adulterated and have resulted in epidemic dropsy to many, collected back the adulterated oil from shopkeepers and intentionally and deliberately sold the same in one tanker to NDDB, Patparganj, Delhi through broker M/s Prem & Company and in the name of M/s Shree Ganpati Traders, Ghaziabad on 25.7.98 in oil tanker No. DHL 3792. It is also alleged that samples of oil lifted from the vacant plot near the premises of Vikas Traders also shows that M/s Vikas Traders intended to destroy the mustard oil available in their possession. Further, the samples of oil collected by Delhi Police from M/s Kamal Oil Mills on 29.8.98 and 01.9.98 were got tested from IICT, Hyderabad and as per report dated 13.11.98, said samples were found adulterated with argemone oil. The samples of mustard oil lifted from the house of K. K. Jha also showed presence of argemone after being tested as per the Prosecution case.
99. In this regard, Ld. Defence Counsels argued that entire case of the CBI is false. It was submitted that there is no evidence on record to establish that mustard oil supplied by A1 to Vikas Traders, and in turn resold to Mother Dairy, was found to be Argemone positive. During the course of arguments, my attention was drawn to the deposition of PW85 Madhur Kant Saxena, Senior Supdt. Mother Dairy, Patparganj, Delhi. It was submitted by Ld. Defence Counsel that as per PW85 when the oil was received in Mother Dairy, then the quality of oil was tested in the laboratory of Mother Dairy. He submitted that there is nothing in the deposition of this witness to suggest that mustard oil received was adulterated. He further submitted that as per PW85 mustard oil received on 25.7.98 having capacity of 100 MT and having stock of 1703.530 MT. Mustard oil from said tanker was further supplied to NDDB C/o Caventer Ago Limited Barashath, West Bengal on 12.7.98 and was also found Argemone negative.
100. It was further argued that Sh. Anil, Quality Controller, Mother Dairy, Patparganj, Delhi was cited as witness in the chargesheet filed by the CBI and his statement was recorded during investigation under Section 161 CrPC. However, the said witness was not brought into the witness box by the Prosecution and an adverse inference must be drawn against the Prosecution for the same. Statement of Anil recorded under Section 161 CrPC was got exhibited during the examination of PW100 Insp. A. K. Pandey, Inspector CBI and the same is Ex. PW100/DA. Ld. Defence Counsel pointed out that in his said statement recorded under Section 161 CrPC Ex.PW100/DA, Anil Kumar Pant had stated that on 25.1.98, oil tanker bearing No. DHL3792 carrying mustard oil came to the Mother Diary and that as usual he took two samples in two separate bottles of 100 ml each from the tanker for testing purposes. The samples were checked in the laboratory at Mother Dairy complex and were found as per specification of NDDB. The oil tanker was then unloaded in the storage tank and the mustard oil was found to be as per specification including argemone negative. Ld. Defence Counsel thus submits that since this witness had clearly stated during investigation that mustard oil was found to be as per specification including Argemone negative, his testimony was deliberately not recorded during trial by the Prosecution.
101. My attention was also drawn to the fact that Sh Amrit Ranjan Singh, Executive of Dhara Marketing Group, though examined during investigation and his statement recorded under Section 161 CrPC, was also not brought into the witness box deliberately and intentionally. His statement was, however, got exhibited during examination of PW112 IO S. C. Tiwari and the statement of Amrit Ranjan Singh recorded under Section 161 CrPC is Ex. PW112/D3. In the said statement Ex. PW112/D3, Amrit Ranjan Singh had stated that mustard oil in tanker No. 3792 at Patparganj on 25.7.98 had been purchased from M/s Ganpati and Company through authorised broker M/s Prem and Company and it was subsequently learnt that this oil was supplied by Vikas Traders. Oil was stored in tanker No. 404. In statement under Section 161 CrPC Ex.PW112/D2, this witness had also stated that oil had been tested and had been found to be argemone negative.
102. In the light of the aforesaid facts and circumstances, the case of the Prosecution that adulterated mustard oil was supplied to M/s Vikas Traders by A1 and further resold by M/s Vikas Traders to Mother Dairy, Patparganj, Delhi stands completely demolished.
103. During the course of arguments, much stress was laid by Prosecution on the statement of PW30 Lorinda Ram, who deposed that he had printed 10,000 copies of labels of 'Laxmi Brand Mustard Oil' at Rashtriya Printing Press at the instance of accused Pawan Kumar. Reliance was also placed on the deposition of PW47, who was running Kiryana Store in the name of S. K. Kiryana Store, from whose shop family of the deceased had purchased adulterated mustard oil on 31.7.98 and 03.8.98.
104. However, Ld. Defence Counsels vehemently opposed the case of the Prosecution and argued that there is no evidence on record to establish that the mustard oil allegedly consumed by the family of K. K. Jha is the same mustard oil which was supplied by A1 to Vikas Traders (A4 and A5). Ld. Defence Counsel argued that no evidence was led by the Prosecution to establish that Vikas Traders had packed the mustard oil purchased from A1 and 'Tiranga' or 'Vandav' brand and then supplied to Vinod Gupta or S. K. Kiryana Store. It was submitted that PW66 categorically stated in his crossexamination that from 25.4.98 onwards use of pack only in Laxmi Brand and no other brand was used by Vikas Traders from 25.4.98 onwards. My attention was drawn to the deposition of PW47 Vinod Yadav, who had deposed that he purchased one tin of Vendav brand mustard oil from Vinod Gupta of of Sewark Park.
105. It was further pointed out that PW47 nowhere deposed in his entire testimony that he had purchased Laxmi Brand mustard oil from A4 and A5. On the contrary, in his crossexamination, the witness again changed his stand and deposed in his crossexamination recorded on 01.6.2000 that "I purchase tiranga brand from shop of Vinod Gupta situated at Sewak Park." It was submitted by Ld. Defence Counsel that said witness namely PW47 Vinod Yadav has himself made two contrary statements during his deposition, inasmuch as during his examination in chief he had stated that he purchased one tin of 'Vandav' brand from Vinod Gupta whereas in his cross examination, he deposed that he had purchased one tin of 'Tiranga' brand from shop of Vinod Gupta. It was argued that in his entire deposition, he failed to depose that he had purchased 'Laxmi Brand', as alleged by the Prosecution. Moreover, no label either of the 'Vandav' brand of 'Tiranga' brand was seized by the Investigating Agency either from the shop of Vinod Gupta of S. K. Kiryana Store, Sewak Park or even from the premises of M/s Vikas Traders nor it is established that M/s Vikas Traders used to sell under the brand of Vendav or Tiranga mustard oil or that it had been supplied in the said name to various shopkeepers and M/s S. K. Kiryana Store.
106. On going through the aforesaid evidence and after considering the submissions made, I find myself in agreement with the arguments of Ld. Defence Counsel. There is no material to establish the fact that Vinod Gupta had purchased laxmi brand mustard oil which had been packed by A4 and A5 or had sold the same in brand name of Laxmi. It may be pertinent to note that the Prosecution did not even crossexamined PW47 in this regard.
107. Moreover, the Prosecution has failed to lead any evidence to establish that Tiranga brand, allegedly purchased by Vinod from the shop of Vinod Gupta was in fact supplied by Vikas Traders. The mere fact that PW30 has deposed that the labels were got printed of laxmi brand mustard oil by Pawan Kumar of M/s Vikas Traders in printing press would not be sufficient to establish the case of the Prosecution.
108. Further, there is evidence of the Prosecution witness themselves on record to the effect that A4 and A5 i.e. Vikas Traders used to purchase mustard oil from various other suppliers in Delhi and from outside Delhi and they were dealing in various other kinds of oil. In this regard, reference may be made to the deposition of PW55 Rajesh Kumar Gupta, Partner of M/s Babu Ram Gupta and Company Oil Brokers, who stated that they had arranged supply of edible oil to Rampat Oil Mill, Vikas Traders other than Ms Kamal Oil Mills and the firms which used to supply to Rampat Oil Mill, M/s Vikas Traders and Naresh Trading Company on 16.7.98. Similarly, PW45 Devender Kaushik, Partner of Prem & Company, Katra Bariyan, Fathey Puri, Delhi also stated that Vikas Traders purchased Palmoline oil from them.
109. Thus, on the basis of aforesaid evidence, mustard oil of 'Vandav' or 'Tiranga' brand, allegedly purchased by Vinod Yadav (PW47) cannot be said to be the same oil which was supplied by A1 to Vikas Traders i.e A4 and A5.
110. The next contention of the Defence was that there is sufficient evidence on record to establish that family of K. K. Jha was also using Dhara and Dalda oil, which were both found to be adulterated with argemone as per Prosecution evidence itself. In this regard, reliance was placed on the deposition of PW47 Vinod Yadav, wherein he deposed that he sold 4 kg sugar, 5 kg suji, 3 kg ghee, toffee, biscuits etc. chips, kamla biri, 1 kg mutter and 12 kg atta for the birthday of her daughter. PW44 Vibha also admitted that she had purchased Dalda, sugar, suji and other items from the shop of PW47 Vinod Yadav on 03.8.98.
111. PW66 Ct. Heera Lal, who had seized the sample of mustard oil in one bottle and 'Dhara' oil in another bottle and seized the same as per seizure memo Ex. PW66/A from the house of K. K. Jha had told that while producing the two bottles containing mustard oil and 'Dhara' oil told them that by consuming both the oil, all his family members had fallen ill.
112. It was further submitted that as per report of IICT, Hyderabad which is Ex. PW57/B, Dhara oil was stated to be adulterated with Argemone and contained 0.04% of Argemone oil therein.
113. Ld. Defence Counsel for accused No. 1, 2 and 3 further argued that there is no evidence on record that Smt. Sushila Devi and Ms Pinky fell ill on account of mustard oil only as both Dhara and Dalda was simultaneously consumed by their family which were also found to be adulterated with argemone oil. Ld. Defence Counsel pointed out that Avdesh Kumar, son in law of K. K. Jha, whose statement was recorded by Investigating Agency during investigation under Section 161 CrPC, though he was not examined as Prosecution witness during trial. It was pointed out that as per statement recorded under Section 161 CrPC, Avdesh Kumar had stated when he came back from village on 28.7.98, he found that Pinky, the daughter of Jhaiji was seriously ill. He had also stated that Smt. Sushila was not shown to any doctor or taken to any hospital. It was argued that the illness of Ms Pinky prior to 28.7.98 was not thus related to consumption of food articles prepared in mustard oil. There is also no evidence on record that family members of K. K. Jha suffered from dropsy disease prior to 03.8.98.
114. It is further submitted by Ld. Defence Counsel that the samples of mustard oil seized from the house of K. K. Jha were not found to be noxious as per evidence on record and thus offence under Section 272/273 IPC cannot be said to be made out against the accused persons. In this regard, he relied upon the deposition of PW73 Dr. Vasantha Muthaswamy, Sr. Deputy Director General, Indian Council of Medical Research, New Delhi, who admitted that 2% of adulterated oil causes dropsy in human beings. Ld. Counsel for A3, Sh. Pramod Jalan, Adv argued that samples of mustard oil purchased by K. K. Jha after being analyzed by IICT, Hyderabad was found to contain only 0.06% of argemone which was more than 33 times less than the limit of 2% as stated by PW73 to show symptoms of dropsy in human beings. He submitted that in the light of the deposition of PW73 and without prejudice his other arguments, Prosecution has miserably failed to establish that mustard oil allegedly consumed by the family member of K. K. Jha contain sufficient adulteration in the form of Argemone oil which can lead to symptoms of dropsy as per report of IICT, Hyderabad Ex. PW57/C.
115. The next contention of the Defence is that death of Smt. Sushila and Ms Pinky cannot be linked by Prosecution to any act on the part of the accused persons. He argued that as per Section 328 IPC, person can be found guilty of the said offence if it is established that he had administered or caused to be taken by any person any poison or any stupefying, intoxicating or of constraining the sufferer or any person interested in such sufferer to do anything that is illegal or which may facilitate the commission of an offence. He argued that Prosecution in the present case failed to prove any intention on part of the any of the accused to administer or cause to be administered any poisonous substance to the deceased. It was submitted that viscera was preserved during the course of investigation and sent for analysis. Viscera report of both the deceased Smt. Sushila and Ms Pinky were found to be negative for any common poison as per report Ex. PW112/D2. It was further submitted that in view of viscera report Ex. PW112/D2 offence under Section 328 IPC cannot be said to be made out against the accused. In this regard reliance was also placed on a judgment titled as Muruga Goudan vs Emperor reported as AIR 1915 Madras 56, it has been laid down as under: "In order to convict a person of an offence under Section 328 IPC, mere administration of the drug will not do. There must be evidence to show that such administration was with the intent specified in Section 328 and to cause injury to the person to whom it was administered."
116. It is also relevant to mention at this juncture that as per postmortem report of Smt. Sushila and Ms Pinky Ex. PW64/A and PW64/B respectively, final opinion as regards cause of their death was kept pending as the viscera had been preserved and sent to FSL for its analysis. Despite the receipt of viscera report, no final opinion was obtained by the CBI as regards the cause of death of Smt. Sushila and Ms Pinky for reasons best known to them. In other words, there is no evidence whatsoever on record to finally and conclusively establish the cause of death of Smt. Sushila and Ms Pinky, inasmuch as CBI did not seek any final opinion as regards cause of their death pursuant to receipt of viscera report. In these circumstances, I am inclined to agree with the arguments of Defence that Prosecution has miserably failed to establish the cause of death of Smt. Sushila and Ms Pinky and even to establish in the light of the viscera report Ex. PW112/D2, the existence of any common poisoning in their viscera, thus, demolishing the entire case of the Prosecution in so far as offence under Section 328/304 IPC are concerned.
117. Besides the aforesaid submissions, it was argued by ld. Defence counsel appearing on behalf of A1 to A3 that the sample of Mustard Oil lifted by Food Inspectors under provisions of Prevention of Food Adulteration Act, 1954 from Kamal Oil Mills on 29.08.1998 were found to be Argemone Negative by PFA Department, Delhi. It was submitted that before taking samples from the premises of the Kamal Oil Mills, the Crime Branch had requested the PFA Authorities to send some officials along with them to enable them to lift samples of mustard oil. PW69 ASI Anand Singh, Crime Branch exhibited the seizure memo Ex.PW69/B which he prepared while lifting samples from Kamal Oil Mills on 29.08.1998. In this regard, reliance was also placed upon the statement of DW1 V.P.S.Chaudhary, Food Inspector, Govt. of NCT of Delhi, who deposed that they lifted the samples of mustard oil from tank No.1 and refined mustard oil from tank No.3, the oil which was taken out from the said tank were divided into two separate sets of samples, one for PFA and another for Crime Branch.
118. Learnd defence counsel submitted that the test report of the samples though mentioned in the list of documents filed with the chargesheet were not brought on record by the prosecution as admitted by IO/SI S.C.Tiwari PW112. In this regard reliance was also placed on the testimony of DW2 S.K. Nagpal, Local Health Authority, Directorate of PFA, NCT of Delhi, Lawrence Road, Delhi, who deposed that the samples lifted from the premises of Kamal Oil Mills were conforming to the standards laid down on PFA Rules and intimations to this effect were issued to Kamal Oil Mills under his signatures and the same are Ex.DW2/A & B.
119. Learned defence counsel submitted that the prosecution did not cross examine DW2 to this aspect thus clearly establishing that the samples were lifted from the premises of Kamal Oil Mills were conforming to the standards laid down laid down on PFA Rules and were not adulterated with Argemone Oil as alleged.
120. Learned defence counsel further vehemently argued that the reports of the IICT Ex.PW57/A & 57/B&C are not worthy of reliance. It was firstly submitted that PW57 Dr.Sajjid Hussain of IICT, Hyderabad cannot be considered to be expert witness and his report cannot be treated as an expert opinion as per Section 45 of the Indian Evidence Act.
121. Further, as per Section 2(C) of the Prevention of Food Adulteration Rules, 1955 a laboratory means a Central Food laboratory and Rule 3 specifies the names of Central Food laboratory authorized to analyze food samples. IICT, Hyderabad is not a Central Food Laboratory as per Table I of Rule 3(2) nor even a Central Laboratory as per Table II of Rule 3(2) and therefore analysis of samples of oils by IICT is totally illegal. It is further submitted that the Investigating Agency did not take necessary precautions while taking the samples for the purpose of analysis. In this regard reference has been made to Rule 14 of Prevention of Food Adulteration Rules, 1955, as per which samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers. However, as per the deposition of PW66 Ct.Heera Lal as well as seizure memos Ex.PW66/B & 66/C, the samples were admittedly collected in plastic bottles of 'Bagpiper Whisky' which were handed over to the IO by Sh.K.K.Jha from his house. It was further submitted that as per Rule 17 sealed container of the sample in question should be sent immediately but not later than the succeeding working day by any suitable means. However, in the present case the samples of mustard oil were lifted from the premises of Kamal Oil Mills on 29.08.1998 and 01.09.1998 for their analysis to IICT, Hyderabad along with covering letter dated 03.10.1998 which is Ex.PW112/D.
122. It was also argued that before sending the samples of oils to IICT, Hyderabad, the said samples were sent by prosecution for chemical analysis to Sri Ram Institute of Industrial Research and also to Prevention of Food Adulteration, Lawrence Road, Delhi and Experts' Reports were also admittedly obtained from them as mentioned at Srl. No.5 of Ex.PW112/B. However, the same were not filed along with the charge sheet as admitted by PW112 in his crossexamination. Learned defence counsel submitted that the said reports were admittedly concealed by the prosecution for reasons best known.
123. My attention was also drawn to the various contradictions which were pointed out in the two reports of the IICT, Hyderabad Exhibited as Ex.PW57/A & Ex.PW57/B & C. It was pointed out as per final report Ex.PW57/C the sample bearing Code Number 6 was found to contain Argemone in Interim Report while in Final Report the same sample wsa found to be Argemone Negative. Learned defence counsel also argued that as per the final report Ex.PW57/C itself it has been clearly mentioned that considering the difficulties encountered by HPTLC technique in quantitative determination of Sanguinarine, HPLC, a complimentary technique has been tried, in view of it was argued that the final report was submitted only after hit and trial methodology and the reports in question are not reliable.
124. Besides the aforesaid arguments, learned counsel for A1 to A3 submitted that there is no evidence on record to establish that accused No.2 Dinesh Aggarwal was the Managing Director of Kamal Aggarwal Mills or that he used to manage the entire business affairs of M/s Kamal Aggarwal Oil Mills. It is submitted that as per PW111 R.V.S.Lomhar, Inspector CBI, Kamal Oil Mills was the proprietorship concern of accused Kamal Aggarwal and that there is no evidence that A2 used to manage the business affairs of A1. My attention was also drawn to the deposition of PW14 Harjinder Singh Chhikara, the owner of tankers No.HR12 7944 & HR468644 which were sent by Kamal Aggarwal from Delhi to Modasa, who deposed that he was dealing with M/s Kamal Oil Mills for the last 34 years. Similarly, PW72 Jaiveer Singh Rawat, employee of Kamal Oil Mills also stated that Kamal Aggarwal along with his supervisor used to manage day to day affairs of Kamal Oil Mills and Mr.Dharampal was the main person of Kamal Aggarwal and was designated as head supervisor. It was further argued that there is no evidence on record to establish that A3 had any knowledge or had nothing to do with the business being conducted by A1 in the name of Vijay Trading Corporation.
125. It was also argued on behalf of all the accused persons that the prosecution has miserably failed to prove the existence of criminal conspiracy and that there is not even an iota of evidence to prove that there existed any criminal conspiracy amongst them to commit any of the alleged offences.
126. My attention was further drawn towards the Statement of PW55 Rajesh Kumar Gupta, a partner of M/s Babu Ram Gupta & Co. who admitted having sold mustard oil of Kamal Oil to M/s Rampat Oil Mills, M/s Vikas Traders and Naresh Trading Co. on 16.07.1998 and that all the transactions used to be finalized at the rates prevailing in the market at that time.
127. Learned defence counsel also argued that there was no conspiracy at all amongst any of the accused and no offence whatsoever has been committed by the accused as alleged. It was submitted that no Argemone oil or any other adulterant was mixed by A1 in the mustard oil which was supplied by him. In fact, the mustard oil of A1 supplied to NDDB, Noida and K.S.Consumpro Pvt. Ltd. have been found to be Argemone Negative as is established on record from the prosecution evidence itself. It is further contended by the ld. Defence Counsel that there is no evidence or any other material on record to show that A1 ever met A6 or visited Modasa in Gujarat or made any communication either telephonically or in writing with A6 prior to purchasing Sheria Oil from him and similarly A6 ever met A1 or visited Delhi or made any communication either telephonically or in writing with A1 prior to selling Sheria Oil from A6. Further it is argued that there is no evidence on record to establish that A1 ever met A4/A5 or made any communication either telephonically or in writing with them prior to selling alleged Mustard oil to them.
128. In support of his contentions, ld. Defence counsel submitted that A1 used to look after and manage the entire business affairs of Kamal Oil Mills and also Vijay Trading Corporation with the help of his employees and A2 used to look after limited work of packing and weighing etc. of supplies being made to DCM/SIEL and not involved with any other business activity of either Kamal Oil Mills or Vijay Trading Corporation while A3 has his own independent business and no concern with business activities of A1. In support of his contentions he placed reliance upon the judgment titled as V.C.Shukla vs. State reported as (1980) 3 SCR 500 wherein it is held that:
"In order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence."
129. Ld. Defence counsel further argued that no evidence was led by the Prosecution whatsoever, either direct or even circumstantial, to prove the existence of any conspiracy amongst the accused persons as alleged and that no conspiracy existed and the business was conducted by A1 in the routine manner complying with legal provisions and that the allegation of criminal conspiracy against the accused persons is a mere allegation of the Prosecution.
130. Learned defence counsel also submitted that the Prosecution has failed to prove the existence of mens rea, which is a necessary ingredient for establishing commission of the alleged offences by the accused. In this regard reliance has been placed upon the judgment titled as Nathu Lal vs. State of M.P. AIR 1966 SC 43 in support of his contentions.
131. It was argued that in the present case the motive attributed to all the accused by prosecution is to commit the alleged offences to make huge profits as per the charge sheet. But, no evidence whatsoever has been brought on record by the prosecution in support of such an allegation. There is no material on record but a mere false allegation in the charge sheet to give some credence to the allegation of criminal conspiracy. The prosecution has not brought on record even an iota of evidence in support of its allegation that accused made huge profits in the transaction.
132. It was further submitted that the prosecution has not led any evidence to show that what was the percentage of Argemone Oil extracted from Argemone seeds, the cost of production of Argemone Oil allegedly supplied by A6 to A1 and that Argemone Oil was in fact a cheaper oil and mixing of the same with mustard oil would have in fact be so highly profitable that all the six accused person would enter into a criminal conspiracy to commit alleged offences. Further, it is also submitted that the prosecution has failed to brought on record the quantum of the alleged huge profit attributed to the accused persons.
133. It was contended that the alleged adulteration in mustard oil seized from the house of K.K.Jha has been found to be 0.06% which means that in one tanker of mustard oil containing 12000 kgs, there would have been 7.2 kgs of Argemone oil mixed in same. In a tanker of 12000 kgs, the maximum profit by mixing alleged Argemone Oil with mustard oil would have been Rs.11 x 7.2 = Rs.79.20 and in the three tankers of mustard oil supplied by A1 to Vikas Traders, Rampat Oil Mills and Naresh Trading Co. the total profit would have been a maximum of about Rs.238/ and if the same is divided amongst 6 accused, the same would be a maximum of Rs.40/ per accused. It was further argued that it is not only inconceivable but also improbable and unbelievable that for a mere profit of Rs.40/, a person would enter into criminal conspiracy to commit the alleged offences.
134. Learned defence counsel for Accused No.4 & 5 also submitted that accused Pawan Kumar is the proprietor of Vikas Traders and has been doing the business of procuring, process as well as trading the mustard oil in Delhi. He argued that the oil was supplied to him from Kamal Oil Mills was further packed in the name of Vandev, Lakshmi and Tiranga brand by Vikas Traders who further sold the same to the shopkeepers including Shalu Enterprises, S.K.Kiryana Stores, Gupta Stores etc. admittedly through the broker and thus it cannot be said that there was contract between Kamal Oil Mills and Vikas Trading and as such there existed criminal conspiracy between A1 and Pawan Kumar.
135. It is further pointed out that in his crossexamination PW112 S.C.Tiwari, IO deposed that Pawan Kumar is the proprietor of Vikas Traders which is a proprietorship concern and that he does not remember whether during investigation any document was collected to show that Sushil Kumar was looking after the business of this concern and that he do not want to see the record to recollect these facts.
136. It is submitted that in view of the aforesaid, it is apparent that there is no evidence on record so as to prove that the accused Sushil Kumar had nothing to do with the business of M/s Vikas Traders and no evidence whatsoever has been led to establish the contention of the prosecution.
137. I have considered the above arguments in the light of the evidence on record. As aforesaid, the prosecution has alleged that the accused persons had conspired together during the period May, 1998 to August, 1998 and had mixed Argemone Oil with Mustard Oil, which was used by the people for the purposes of preparation of food and made the food as noxious and sold the same in the market and firstly thus committed an offence punishable under Section 272/273 read with Section 120B IPC.
138. In the light of the evidence on record, I find that firstly the allegations of existence of a criminal conspiracy have not been proved on record. Further, it was incumbent upon the prosecution in order to establish its case for the offence under Section 272/273 IPC that the oil which was sold in the market had become noxious and that it had been adulterated by the accused persons.
139. A bare perusal of the Section 272 IPC would reveal that foremost requirement for convicting any person under the aforesaid provisions is that it must be established that article of charge of adulteration of food or drink has been administered by someone so as to make such article noxious.
140. On the basis of the evidence led in the present case, I find that the prosecution has failed to establish that the oil marketed by the Accused persons had been administered by them to anyone or that such oil had become noxious. The prosecution in this regard has relied upon the deposition of PW51 Deshraj who was running shop in the name of S.K.Traders at Sewak Park, who deposed that he had purchased 20 tins of mustard oil on 21.07.1998 from M/s Vikas Oil Mills. He also deposed that three tins of mustard oil were sold by him in packed position and one was sold in retail and that complaints were made to him by the purchasers of the mustard oil that the mustard oil was defective and has caused vomiting and loose motions. He deposed that 1617 tins were taken back by M/s Vikas Oil Mills.
141. However, a perusal of deposition of PW55 Rajesh Kumar Gupta would reveal that though the oil supplied to Rampat Oil Mills and Naresh Trading Co. was returned by them to Kamal Oil Mills., the oil sold to Vikas Traders was further sold to NDDB. It may also be pertinent to mention that as per PW55, after the delivery of mustard oil and receipt of payment on or about 23.07.1998, Rampad Oil Mills, Naresh Trading Co. complained about the rumour of dropsy due to consumption of mustard oil. Thus, as per this witness the oil was returned to M/s Kamal Oil Mills by the parties viz., Rampat Oil Mills and Naresh Trading Co. on the basis of rumours of dropsy. As per the case of the prosecution M/s Vikas Traders after knowing that the oil supplied to them was adulterated oil and had resulted in epidemic dropsy to many, collected back the same from the shopkeepers and intentionally and deliberately sold the same in one tanker to NDDB, Patparganj, Delhi through broker M/s Prem & Co. and in the name of M/s Shree Ganpati Traders, Ghaziabad on 25.07.1998.
142. Further, as discussed as above the said oil was found to be Argemone negative as per Ex.PW85/9. Moreover, the statement of Sh.Amrit Ranjan Sinha, Executive Dhara Marketing Group which was recorded under Section 161 Cr.PC and exhibited as Ex.PW112/D3 also shows that the oil purchased by them from M/s Shee Ganpati Traders, Ghaziabad through authorized broker M/s Prem & Co. which was supplied by M/s Vikas Traders was found to be Argemone negative as per the test analysis reports. Similarly, the mustard oil taken back by A1 from Rampat Oil Mills was supplied to M/s K.S.Consumpro Pvt. Ltd. which accepted the delivery of mustard oil only after testing the same as per PW67 Vinod Kumar, driver of tanker No.DL 1G A0998. Further, M/s K.S.Consumpro Pvt. Ltd. In turn supplied the same after packing in Tamul Brand Agmark to S.M. Enterprises, Guahati and Tamul Brand mustard oil was also found to be Argemone Negative as per Ex.PW86/5.
143. It is further alleged that the accused persons in pursuance of their criminal conspiracy administered Argemone Oil in the Mustard Oil which converted the mustard oil as poisonous, with the knowledge that the same is likely to cause hurt to the human body and thereby committed offence punishable under Section 328 read with Section 120B IPC.
144. It was argued by the Learned Prosecutor that there is evidence, both oral and documentary on record, which establishes that the accused persons adulterated mustard oil and sold it in the market to various dealers/persons including the family of Krishan Kumar Jha (PW20) and that Smt.Sushila Devi w/o Krishan Kumar Jha and Ms.Pinki D/o Krishan Kumar Jha died after taking food prepared in the adulterated mustard oil, which was purchased from the market by Smt.Vibha Devi (PW44) D/o Krishan Kumar Jha from the shop of Vinod Yadav (PW47), who used to procure mustard oil from S.K.Kiryana Stores. He placed reliance upon the expert report of IICT, Hyderabad and argued that the said report Ex.PW57/A contained 'Argemone Maxicana' and as per PW73 Dr.Vsasntha Muthuswamy, Sr.Dy. Director General, ICMR, New Delhi, Dropsy is a clinical condition occur in as a result of consumtion of Argemone Maxicana seed oil. In this regard he also relied upon the depositions of PW87 Dr.Debi Mukherjee & PW28 Dr.Mangla Rai.
145. Per contra, learned defence counsels on the basis of the aforesaid arguments of the prosecution submitted that the prosecution has failed to establish the link between the accused persons. It was submitted that there was nothing on record to establish firstly, that a number of persons died as a result of consumption of adulterated mustard oil by the accused persons. It was further argued that there is no evidence on record to prove that A6 had supplied Argemone Oil which was received in the premises of Kamal Oil Mills at the instance of A1 Kamal Aggarwal. It was submitted that rather PW17 Raj Singh categorically established that Sheria Oil was procured by A1 from A6. It was further submitted that the case of the prosecution has also demolished in the light of deposition of PW47 Vinod Yadav who deposed before the court that he had purchased mustard oil from Vinod Gupta and not from S.K. Traders as is the case of the prosecution.
146. Learned defence counsel further contended that no evidence has been led by the prosecution to prove that the entries made as 'A' Oil in the registers are Ex.PW94/1 to 5 stand for Argemone Oil and rather the prosecution's own witnesses have deposed that in fact it is Sheria Oil which was received against the said entries made in the registers seized from M/s Kamal Oil Mills.
147. It is also pertinent to mention at this juncture that as per the deposition of PW68 Dr.Ravinder Amraik, who used to treat Smt.Vibha and her daughter that in the month of August, 1998 patients Vibha, Simi and few other related to them came to him for treatment, who were suffering from vomiting, loose motions and fever. He further deposed that their relatives namely Pinki and Sushila had also come his clinic, but they were referred to Govt. hospital as their condition was such which could not be treated in his clinic. However, at the same time, it is pertinent to peruse the crossexamination of PW68, wherein he categorically deposed that he did not stated these facts to the Investigating Agency during the course of investigation. He further admitted that he had stated in his statement before CBI that Smt.Sushila, motherinlaw of Avdesh Kumar was never brought to his clinic for treatment and that on 04.08.1998 he did not give any treatment at his clinic to Ms.Pinki and her mother Smt.Sushila.
148. In the light of the aforesaid, it is apparent that there is no evidence on record to establish that the deceased Smt.Sushila and Ms.Pinki had received any medical treatment till their hospitalization since 03.08.1998 when they allegedly consumed the adulterated mustard oil. It has also come on record during the course of trial that there is no record of the DDU hospital which could establish that they were brought to the hospital prior to the date of their admission.
149. It is further revealed on going through the evidence on record that the viscera report of the deceased Sushila and Pinki were found to be negative for any common poison as per Ex.PW112/D2. The case of the prosecution that offence under Section 328 IPC was thus committed b the accused persons that they administered stupefying, intoxicating substance to the deceased is thus completely demolished in view of the aforesaid viscera report.
150. Learned Spl. PP representing CBI has further placed reliance upon the judgment titled as Chandran @ Manichan @ Maniyan vs. State of Kerala reported as JT 2011(4) SC 340. However, the facts of this case are clearly distinguishable from the facts of the instant case.
151. Insofar as offence under Section 304 r/w Section 120B IPC is concerned, it is apparent on going through the evidence led by the prosecution that the charges for the aforesaid offences have also not been established on record. It has also been pointed hereinabove that as per post mortem report, Ex.PW64/A & Ex.PW64/B of Smt.Sushila and Ms.Pinki, the final opinion as regards the cause of death of Smt.Sushila and Ms.Pinki was kept pending for the reason that the viscera had been sent for analysis to FSL. The viscera reports of the deceased Ex.PW112/D2, however, establish that they tested negative for common poisoning. It is further not the case of the CBI that after receipt of the viscera report any final opinion was obtained as regards the cause of death of Smt. Sushila and Ms.Pinki. It is in the light of this evidence that the allegations of the offence under Section 304 IPC needs to be analyzed. Section 304 IPC reads as under: "304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
152. A perusal of the Section 304 IPC would show that in Part I there is intention, while in Part II there is only knowledge and intention is expressly excluded. Section 304, PartI covers cases which by reason of the exceptions under Section 300 IPC are taken out of the purview of Section 300 of Clauses 1,2 & 3, but otherwise would fall within it and also cases which fall within second part of Section 299 but not within Section 300 Clauses 2 & 3. Section 304 Part 2 IPC covers cases falling within third part of Section 299. PartII of Sec.304 applies when the act is done with the knowledge that it is likely to cause death but without any intention to cause death.
153. In the present case, the prosecution has failed to lead any evidence to establish either intention on the part of the accused persons to cause death of Smt.Sushila and Ms.Pinki or even to establish knowledge of any act on their part would lead to death of the said deceased persons. In other words, the prosecution as discussed hereinabove has failed to establish on record any cogent reasons for which the accused persons entered into a criminal conspiracy amongst themselves. It has failed to prove that the object of such alleged conspiracy was to market the adulterate mustard oil. It has not further been established by way of any evidence that A6 had purchased Akhara seeds or extracted Argemone oil therefrom at Modasa, Gujarat or that thereafter he had transported the Argemone oil in tankers to M/s Kamal Oil Mills, Delhi.
154. It has also been held hereinabove that the prosecution has miserably failed to establish that the alleged Argemone Oil was adulterated or mixed with the mustard oil in the premises of M/s Krishna Oil Mills, Modasa, Gujarat or that it was further marketed to various other firms by Kamal Oil Mills. It is also been held hereinabove that the prosecution has also not led any evidence to establish that A4 & A5 had further marketed the adulterated mustard oil procured from A1 to A3 or that after marketing it under the name of Laxmi Brand had sold it to Sh.Vinod Yadav, from whom the family of Sh. Krishan Kumar Jha has allegedly purchased the adulterated mustard oil.
155. Learned counsel for A6, during the course of his submissions, has relied upon the judgment titled as Sharad Birdhichand Sarda vs. State of Maharastra reported as (1984) 4 SCC 116 wherein reliance was also placed on the case of Ramgopal vs. State of Maharastra in which it was observed as under:
"Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (Secondly), had the accused the poison in question in his possession ? And (Thirdly), had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death."
156. Learned defence counsel thus rightly submitted that the prosecution has failed to lead any evidence which could answer the aforesaid questions which were essential to prove the guilt of the accused persons for the offence punishable under Section 304 read with Section 120B IPC as alleged.
157. From the evidence on record it is apparent that the prosecution failed to establish that the deceased Smt.Sushila and Ms.Pinki had died due to consumption of adulterated mustard oil supplied by the accused persons who were allegedly involved in a criminal conspiracy. It may be reiterated, even at the cost of repetition, that the viscera reports of Smt.Sushila and Ms.Pinki Ex.PW112/D2 had failed to establish existence of any common poison and no final opinion was obtained by the CBI as regards the cause of death of Smt.Sushila and Ms.Pinky. Their post mortem reports Ex.PW64/A & Ex.PW64/B respectively does not state any final opinion as regards cause of their death.
158. In these circumstances, the allegations of the prosecution for the offence under Section 304 read with Section 120B IPC also do not stand established on record.
159. On going through the evidence on record in its entirety, I am therefore of the considered opinion that although the prosecution has examined as many as 112 witnesses on record, yet the witnesses have failed to prove the alleged offences with which the accused persons were charged. After considering the material on record, I am of the opinion that the Prosecution has miserably failed to bring home the guilt of the accused persons. There is no evidence whatsoever on record to prove the allegations of the offences punishable under Sections 272/273/304/328 IPC r/w Section 120 B IPC against the accused persons as alleged.
160. For the foregoing reasons and in the light of evidence on record as discussed hereinabove, I am therefore of the considered opinion that the allegations against the accused persons do not stand established on record by way of prosecution evidence and all the accused persons deserve to be acquitted. Accordingly, all the six accused persons namely Kamal Aggarwal, Dinesh Aggarwal, Vijay Kumar, Pawan Kumar, Sushil Kumar & Mahesh Kumar Magan Lal Shah are acquitted of the offences with which they were charged. Their bail bonds stand cancelled. Sureties discharged. File be consigned to record room.
Announced in the Open Court on 01st day of October, 2011 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.