Delhi District Court
State vs . Ruldu Ram on 28 July, 2015
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. RULDU RAM
FIR No. 542/1999
PS: MOTI NAGAR
U/S: 7/10/55 OF ESSENTIAL COMMODITIES ACT
JUDGMENT
Sr. no. of the case : 188/3/10
Unique Case ID no. : 02401R0139212002
Date of commission of offence : 17.09.1999
Date of institution of the case : 05.09.2000
Name of the complainant : Sh. K.R. Agri
Name of accused and address : 1). Ruldu Ram
S/o Late Sh. Hari Ram
R/o H.No.A-204,
Sudershan Park,
Moti Nagar, New Delhi.
2). M/s Balaji Lamps
F-329, Sudershan Park,
Moti Nagar, Delhi
(through Ruldu Ram)
Offence complained of or proved : U/s 7/10/55 of E.C. Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 14.07.2015
Date of judgment : 28.07.2015
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. Brief facts of the case are that on 17.09.1999, Inspector K.R. Agri alongwith other officials of Food & Supply Department conducted a raid FIR No. 542/1999, PS Moti Nagar Page 1/15 at the business premises of M/s Balaji Lamps situated at F-329, Sudarshan Park, Moti Nagar, New Delhi. The accused Ruldu Ram met the raiding party and introduced himself as Proprietor of the firm. The premises was searched and six domestic LPG cylinders alongwith pressure regulators were found being used in the process of manufacturing of bulbs. The accused could not produce any valid document in respect of aforesaid cylinders. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. The prima facie case U/s 7/10/55 of Essential Commodities Act was found to be made out against the accused. Accordingly, charge framed against the accused. The accusation was read over and explained to accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses.
4. PW1 K.D. Trehan stated that in the month of September 1999 he was working in Food & Supply Department, K-Block, Vikash Bhawan, New Delhi. It is stated that on 17.09.1999 he alongwith Inspectors of Enforcement Department namely K.P. Singh, Agri, Ramesh Kumar and one another Inspector visited the business premises M/s Balaji Lamps at F-329, Sudershan Park, New Delhi, where they contacted Mr. Ruldu Ram, Proprietor of the said firm. It is stated that they checked the premises and found that the bulbs were being manufactured in the premises. It is stated that they found six domestic LPG cylinder alongwith two pressure regulators which were being used in the process of manufacturing of bulbs. The accused could not produce any valid document/licence for carrying out the said business. The accused could not show any document showing that in whose name the connection of LPG cylinder was allotted. It is stated that they seized all FIR No. 542/1999, PS Moti Nagar Page 2/15 the cylinders and regulators vide seizure memo Ex.PW1/A and same were taken to their office as it was late. It is stated that on the next day i.e. on 18.09.1999 they handed over the cylinder and regulators to Gas Agency Darya Ganj. Inspector K.R. Agri made the complaint to Anti Hoarding Cell, Food & Supply Department. It is stated that on 17.09.1999 they informed their concerned department (Food & Supply) and the Deputy Commissioner of their department informed the office of Director of Industry, Kashmere Gate. Accordingly, a team came at the spot in the evening. Thereafter, action was taken in this case by the Industry Department under the appropriate Section of the Act. This witness correctly identified the case property i.e. two regulators of gas cylinders as Ex.P1 (collectively). In his cross-examination, he could not tell the source of information that bulbs were being manufactured at the premises. It is stated by him that he was working in food branch and was given a deployment slip to check the premises of the accused by Incharge Enforcement branch. It is stated by him that raid was conducted under his leadership. It is stated that though he is authorized under the LPG Control Order 1993 however, he was not having any notification authorizing him to carry out search and seizure.
5. PW2 Sh. K.R. Agri stated that on 17.09.1999 he was working as Inspector, Enforcement Branch, Food & Supply Department, Delhi. On that day he alongwith K.P. Singh, Ramesh Kumar, K.D. Trehan and J.S. Rathi, all Inspectors of the Department inspected the spot under the supervision of Sh. K.D. Trehan, FSO Food i.e. at Sudershan Park, Moti Nagar at M/s Balaji Lamps. It is stated that accused Ruldu Ram met them being the proprietor of the firm. They searched the firm and found the bulbs were being manufactured by using the LPG Gas. It is stated that they informed their department who sent Anti Hoarding Cell. Team of Industry Department also came there. It is stated that they seized 6 LPG gas cylinders and two pressure regulators which were being used at that time vide seizure memo Ex.PW1/A. It is stated that he made FIR No. 542/1999, PS Moti Nagar Page 3/15 complaint to Incharge Anti Hoarding Cell, Food & Supply Department, Vikas Bhawan on the spot vide Ex.PW2/A. It is stated that the gas cylinders and regulators were given to gas agency vide superdarinama Ex.PW2/B. It is stated that memo Ex.PW2/C was also prepared. It is stated that no other documents were taken into possession, however, Ex.PW2/D was also prepared. It is voluntarily stated by him that he does not remember if some documents were taken into possession as the case pertains to year 1999. It is stated that some documents were taken into possession vide memo Ex.PW2/D. It is stated by him that he had signed all the documents including complaint Ex.PW2/A, superdari memo Ex.PW2/B, production-cum-seizure memo Ex.PW2/C, handing over memo of cylinders Ex.PW2/X at point A and search-cum-seizure memo Ex.PW2/C at point B. He marked the copy of relevant notification as Mark 'XN'. In his cross-examination, it is stated by him that he does not remember as to when the information was received regarding violation of notification. It is stated by him that the information was received by Enforcement Branch. It is stated by him that he was leading the raiding party on the instructions of Mr. Trehan. It is stated by him that they were duly authorized for conducting the inspection. However, it is stated by him that no separate notification regarding the authorization to conduct search and seizure has been provided by them to the IO. It is accepted by him that no such notification is available on record except Mark XN which is the Control Order itself. He could not tell if any public person from the locality was called to join the proceedings.
6. PW3 HC Narender Pal stated that on 17.09.1999 he was posted at Anti Hoarding Cell, Vikas Bhawan, ITO. On that day he alongwith SI Suresh Khunga SI Satish Kumar and HC Bhagat reached at Sudarshan Park, Moti Nagar. It is stated that there the member of Food & Supply Department were present. The member of Food & Supply Department handed over a complaint to IO SI Suresh Khunga. Thereafter, IO FIR No. 542/1999, PS Moti Nagar Page 4/15 prepared the rukka and he took the rukka vide Ex.PW3/A and went to PS for registration of FIR. It is stated that after registration of FIR, he came back to spot and handed over the rukka & copy of FIR to the IO.
It is stated that thereafter, IO arrested the accused and conducted personal search vide memo Ex.PW3/B. He left the spot at about 05:30 PM.
7. PW4 Sh. Mahender Singh stated that he is the owner of premises no. F-329, Sudarshan Park, Moti Nagar and he had let out the said premises i.e. First Floor to accused Ruldu Ram present in the Court on a monthly rent of Rs.9,000/-. It is stated that accused Ruldu Ram remained his tenant for about 5-6 years. He exhibited on record photocopy of original receipt of house tax as Ex.PW4/A (OSR). In his cross-examination, he could not tell if any rent agreement was executed between him and the accused. It is accepted by him that he had not issued any rent receipt to the accused.
8. PW5 Jitender Rathi also deposed on the same lines as PW1 and PW2.
9. PW6 Krishna Pal Singh also deposed on the same lines as PW1 and PW2.
10. PW7 Inspector Suresh Khunga stated that he was working as Sub-
Inspector in Anti Hoarding Cell, Food & Supply Department, Govt. of NCT of Delhi. It is stated that on 17.09.1999 he was telephonically informed by the Control Room of Food & Supply Department and was directed to reach at F-329, Sudershan Park, Moti Nagar, Delhi. It is stated that at the spot Sh. K.D. Trehan (FSO) alongwith enforcement staff was present and they told him that a search was conducted earlier by the enforcement department on the said address at about 01:30 PM. It is stated that a written complaint was also submitted by the Inspector K.R. Agri for registration of case. Subsequently a rukka Ex.PW7/A was prepared by him and the same was sent through Ct. Narender for registration of FIR at PS Moti Nagar. It is stated that Sh. K.R. Agri FIR No. 542/1999, PS Moti Nagar Page 5/15 produced three documents i.e. entry-cum-search-cum seizure memo, relevant control order regarding LPG Contravention 1993 and the statement of Ruldu Ram (Ex.PW1/A, PW2/A and PW2/B). It is stated that after registration of case accused was arrested vide arrest memo Ex.PW7/B and his personal search was conducted vide memo Ex.PW3/B. Site plan Ex.PW7/C was prepared at the instance of the complainant. The inspection memo Ex.PW7/D was prepared by him. It is stated that the seized six LPG domestic cylinders alongwith two power regulators were handed over to him by the raiding party. Thereafter, application U/s 6A of Essential Commodities Act was made to the Collector, West District, Food & Supply Department, which is Ex.PW7/E. It is stated that upon the instruction of Collector, West by the order dated 27.10.1999, which is Mark A, he deposited the same at Control Room, Food & Supply Department. Thereafter the said six cylinders were deposited by the Food & Supply Department Control Room at the relevant Indane Firm as per the orders of Collector, West District. It is stated that thereafter he was transferred to National Human Right Commission on deputation and case file was handed over to the Reader of Anti Hoarding Cell, Food & Supply Department, Delhi. In his cross-examination, he could not tell who gave the information regarding the incident to the officials of food and supply department. He denied the suggestion that he was not competent to investigate the present case. It is stated by him that when he reached the spot one or two public persons were present there. It is accepted by him that the factum of presence of public persons is not mentioned in the challan, though it is stated by him that public persons were present at the spot. He denied the suggestion that he did not asked the person to join the investigation. It is stated by him that the public persons refused to join the investigation. It is accepted by him that he did not issue any notice to the public persons to join the investigation.
11. PW8 HC Bhagwat Swaroop stated that on 17.09.1999 he was FIR No. 542/1999, PS Moti Nagar Page 6/15 posted with Anti Hoarding Cell. On that day he joined the investigation of the present case with IO SI Suresh Kumar. On that day IO arrested accused Ruldu Ram vide arrest memo Ex.PW7/B.
12. PW9 Ramesh Kumar also deposed on the same lines as PW1 and PW2.
13. No other witness was remained to be examined, hence, PE was closed.
THE DEFENCE :
14. Statement of accused was recorded U/s 313 Cr.P.C, wherein he pleaded innocence and stated that he has been falsely implicated. It is stated by him that he had applied for the licence with Bureau of Indian Standards for the purpose of manufacturing electric bulbs. As per the requirement for obtaining licence around 150 pieces of electric bulbs are to be submitted with the authorities. It is stated that he had only manufactured electric bulbs for the licence purposes and the remaining bulbs found at his premises were the rejected being defective during his testing of bulbs manufactured for licence purposes. It is stated that even prior to 17.09.1999 Bureau of Indian Standards had taken the samples for the purpose of licence. It is stated that they had assured him that the licence will be issued in about 15 days time. It is stated that he had explained to the raiding party that he has already made an application to Bureau of Indian Standards for issuance of the licence and the manufactured bulbs were for testing purposes, however, the raiding party ignored his plea. It is stated that he used the LPG cylinder for the purpose of manufacturing those sample bulbs as he was not having any licence by that time. Accused opted to lead defence evidence and examined himself as DW1.
15. DW1 Ruldu Ram i.e. the accused himself stated that he had applied to Bureau of Indian Standards for a licence for manufacture of bulbs vide his application Ex.DW1/1. He exhibited on record the receipt FIR No. 542/1999, PS Moti Nagar Page 7/15 for deposit of requisite fees as Ex.DW1/2. It is stated by him that Bureau of Indian Standards had written to him on 26/28.07.1999 seeking some information and also informing him that a preliminary inspection of his factory will have to be carried out to examine availability of testing equipment and also for drawing samples. He exhibited on record letter of Bureau of Indian Standards as Ex.DW1/3. It is stated that Bureau of Indian Standards had drawn samples of bulbs from his factory and sent the samples to laboratory for testing vide Ex.DW1/4 and DW1/5. It is stated that in the meanwhile a raid was conducted in his factory on 17.09.1999 by Anti Hoarding Cell and officers of Food & Supply Department. It is stated by him that he had told the raiding party that he had already applied for a licence to the BIS and they had already taken the bulbs for samples to the laboratory, however, raiding party ignored his plea. It is stated by him that this fact was testified by Sh. Shyam Sunder, Deputy Director, Bureau of Indian Standards before Collector (West), Delhi as shown in Ex.DW1/6. It is stated that the licence was eventually issued to him by BIS (Bureau of Indian Standards) vide their letter dated 13.06.2000 Ex.DW1/7 (colly). It is stated that on receipt of the licence he had applied for LPG cylinders for commercial use to Agro Industrial Commodities Trading Company Pvt. Ltd and deposited the requisite fees vide Ex.DW1/8. It is stated that they started supply of LPG for commercial use from 04.09.2000. It is stated by him that his CA has also rendered a report regarding investment made by him in plant and machinery vide his letter dated 15.03.1999 Ex.DW1/9. It is stated by him that he had no intention to break any law. In his cross-examination, it is accepted by him that he had used six LPG Gas Cylinders at his bulbs factories on or before the date of raid.
THE ARGUMENTS:
16. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 7 Essential Commodities FIR No. 542/1999, PS Moti Nagar Page 8/15 Act is proved beyond doubt as the accused was using domestic LPG Cylinders for commercial purposes.
17. On the other hand, Ld. counsel for accused has argued that the alleged raid was not conducted by authorized person and the same was in violation of the rules provided by Liquefied Petroleum Gas (Regulation and Supply Distribution) Order 1993. It is pointed out by the counsel that only an officer not below the rank of Inspector duly authorized by Government can inspect, search or seize the LPG Cylinders in these cases. It is pointed out by him that neither Sh. K.G. Trehan nor Sh. K.R. Agri has proved on record any general or specific order whereby any of them might have been authorized by the government as per para 11(a) of the order. It is further argued by the counsel that provisions of section 100 of the Cr.P.C. have also not been complied during inspection and search. On these ground it is argued by Ld. defence counsel that accused deserves to be acquitted in the present case.
THE FINDINGS:
Offence U/s 7 Essential Commodities Act read with Paragraph 3 of Liquified Petroleum Gas (Regulation and Supply Distribution) Order 1993:
18. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
19. Relevant provisions of law applicable in the present case are as under:-
i). As per paragraph 3(1)(c) of the Order, where a person has been granted a connection for liquefied petroleum gas under the public distribution system then he shall not use liquefied petroleum gas for any purpose other than for cooking.
ii) As per paragraph 6(1)(c) of the Order, no person shall possess FIR No. 542/1999, PS Moti Nagar Page 9/15 filled or empty cylinder, gas cylinder valve or pressure regulator, unless he is a consumer and the same has been supplied by a distributor, a government oil company or a parallel marketeer.
iii) As per paragraph 11 (a) of the Order, an officer of the Department of Food and Civil Supplies of the Government, not below the rank of an Inspector authorized by such Government or any Officer authorized and notified by the Central Government or any Officer not below the rank of a Sales Officer of a Government Oil Company authorized by the Government and notified by the Central Government may, with a view to ensuring compliance with the provisions of this Order, for the purpose of satisfying himself that this order or any Order made thereunder has been complied with.
(i). Stop and search any vessel or vehicle which the Officer has reason to believe has been, or is being or is about to be used in the contravention of this Order;
(ii). enter or search any place with such aid or assistance, as may be necessary; and
(iii). seize and remove with such aid or assistance, as may be necessary, books, registers and other records pertaining to liquefied petroleum gas business, filled and empty cylinders, cylinder valves and pressure regulators along with the vehicle, vessel or any other conveyance used for carrying such stock- if he has reason to believe that any provision of this order has been or is being or is about to be contravened and thereafter take or authorize the taking of all measures necessary for securing the production of the liquefied petroleum gas filled or empty cylinders, cylinder valves, pressure regulators, at the office of the Government Oil Company and the vehicle, vessel or other conveyance so seized before the Collector having jurisdiction under the provisions of the Essential Commodities Act 1955 (10 of 1955), for their taking action against all concerned.
iv). As per paragraph 11 (b) of the Order, the provisions of section 100 FIR No. 542/1999, PS Moti Nagar Page 10/15 of the Cr.P.C. relating to search and seizure shall, so far as may be applied to searches and seizures under this order.
20. In the present case the factum of raid and recovery of six LPG Domestic Cylinders and two pressure regulators from the business premises of the accused are not disputed. The first defence raised on behalf of the accused is that the inspection/ search and seizure was not conducted by any authorized officer, hence, the same was not in terms of the provisions provided in Clause (a) and (b) of para 11 of the Order. It is admitted position of law that only an officer not below the rank of Inspector authorized by the Government can enter and search any premises and seize any gas cylinder and other articles in respect of which it has reason to believe that contravention of this order has been committed.
21. In the case in hand though FSO PW-1 K.D. Trehan and Insp. PW-2 K.R. Agri were in the raiding party and either of the two was leading the raiding party . However, no general or special order in writing has been filed on record to show that any of those two or any other officer of the raiding party was authorized by the Government under para 11(a) of the order. In fact PW-2 K.R. Agri not even claimed in the complaint that he has been authorized under para 11 (a) of the order, further, even in their examination before court PW-1 or PW-2 could not show any documents whereby they might have been authorized by the government.
22. Further, no reason has been stated either in the complaint or in the evidence to show that prior to conducting the raid the raiding party has reasons to believe that contravention of this order has been committed. Though, it is claimed by PW-1 K.D. Trehan that a deployment slip to check the premises of the accused was given to him by Incharge Enforcement Branch. However, no such deployment slip has been filed on record or has been proved on record. In fact, there is no mention of such deployment slip in the complaint (Ex. PW2/A) on the basis of which FIR was registered.
FIR No. 542/1999, PS Moti Nagar Page 11/1523. In view of the above stated facts it is apparent that the raid conducted by the raiding party was not in accordance with law. Since by the exercise of power conferred by para 11 (a) a serious invasion is made upon the rights, privacy and freedom of a person, it must necessarily be exercised strictly and in conformity with the dictates of law and only by one who is authorized by law to so exercise. It is not a case of error of judgment on the part of the official concerned. It is also not a case of irregularity in the course of entry, search and seizure committed by an officer acting otherwise in pursuance of the authorization. It is a case where the officer acted sans authority. He exercised power which was not there. And he exercised it when even the conditions for its exercise were not satisfied. Thus, the entire inspection, search and seizure proceedings have been vitiated. Reliance in this respect being placed on a case decided by Hon'ble High Court of Delhi which was in respect of violation of Delhi Kerosene Oil (Export & Price) Control Order 1962, Clause 9 (c) of that order is similar to para 6 (c) of the present order. The case was titled as "Raj Kumar Gupta Vs. State" 1994 JCC 466 wherein it was held by Hon'ble High Court that:-
"As would be brone out from a bare reading of Clause 9
(c) of the Order it is only the Commissioner or an officer authorized by him in writing who can affect search or seizure and that too only when he suspects some infraction of the Order. The language of the Clause clearly spells out the intention and it is to ensure that the officers charged with the duty of conducting searches, conduct them properly and do no harm or wrong to dealers, licenses etc. In the instant case the Inspectors who searched the place and seized the record have no where claimed either in their complaint to the Station House Officer or in their statements before the Court, FIR No. 542/1999, PS Moti Nagar Page 12/15 the vesting of authority on them or the existence of any ground on the basis of which they suspected violation of any condition or Clause of the Order".
24. Similarly, in Suresh Kumar Vs. State of Haryana, 1997 (3) CC Cases 478 (HC), Hon'ble Punjab & Haryana High Court observed that:
" ... Settled position of law is that a police officer of the rank of Sub Inspector is not authorized and notified person under the Order and consequently could not have exercised the power of entry, search and seizure and certainly under Clause 7 of the Order the power of entry, search and seizure and certainly under Clause 7 of the Order the power of entry, seizure, search and investigation of the case do not vest in Sub Inspector of Police who was not authorized by the State Government and notified by the Central government. No fruitful purpose would be served in directing the petition to stand the complete trial. This is the matter which goes to the root of the prosecution and as a fact it has not been disputed in the reply and even during the course of arguments by the learned counsel for the State. I find it a fit case where the charge should be quashed....".
25. On the basis of above stated discussion and landmark judgments it can be safely held that the PW-1, PW-2 and all the other members of raiding party have failed to prove their authority to conduct the inspection, search and seizure as per paragraph 11 (a) of the order. Further, they have not stated the grounds on the basis of which they suspected any violation of condition or Clause of the order. Thus, the inspection proceedings in the present case are vitiated.
26. Further, as per para 11(b) the provisions, of Section 100 CrPC applies to the said order as per which the search and seizure if any, can be conducted only in the presence of two or more independent and FIR No. 542/1999, PS Moti Nagar Page 13/15 responsible inhabitants of the locality in which the place to be searched is situated. It is submitted that this is an essential requirement and in case search is not made in the presence of two or more independent witnesses, the inspection as shown is an unlawful inspection. It is admitted position in the present case that no independent public person from the locality had been joined in the investigation despite the fact that public persons were available there as stated by PW-7 Insp. Suresh Khunga. In fact, no notice has been given to any public person who might have refused to join the investigation. In these circumstances, the procedure as prescribed for the search and seizure under the Control Order has not been complied with. Hence, the inspection which was conducted is a not a proper inspection as per law, thus, the whole procedure is liable to be vitiated. The case as against the accused is on the basis of an inspection, which itself is against the provisions of law. Hence, the prosecution is not as per law.
27. At this stage, it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
28. In the considered view of this Court, not proving the authority of the raiding party on record and not following the procedure of search as provided under the order are the matters which go to the root of the FIR No. 542/1999, PS Moti Nagar Page 14/15 prosecution. The case as against the accused is on the basis of an inspection, which itself is against the provisions of law. Hence, the prosecution is not as per law. The accused is entitled to be acquitted on this ground. Therefore, the accused Ruldu Ram S/o Sh. Bishambhar Dutt is hereby acquitted of all the charges in the present case.
29. Accused has already furnished fresh bail/surety bond in terms of Section 437-A Cr.P.C. The same has been accepted.
30. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 28.07.2015 MM-04 (WEST)/DELHI
Containing 15 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 542/1999, PS Moti Nagar Page 15/15