Delhi District Court
Vipin Kaushik vs E.D.M.C on 7 April, 2014
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE03 (East):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Criminal Appeal No.: 20/14
(R0374972013)
Vipin Kaushik
S/o Sh. Mahesh Chand Sharma
R/o 30/114, Gali No. 6,
Vishwas Nagar, Shahdara,
Delhi. ... Appellant
Vs.
E.D.M.C.
Through Its Commissioner,
Udyog Sadan, FIE,
Patparganj, Delhi.
(Shahdara South Zone) .... Respondent
Challan No. : 1301 dt. 21.3.2013
PS: Farsh Bazar
Zone: Shahdara South
U/s. 416/417/430/461 of DMC Act, 1957
Date of Institution: 19.11.2013
Judgment Reserved on: 21.03.2014
Date of Judgment: 07.04.2014
JUDGMENT:
1. This criminal appeal has been filed under Sec. 374 (3) of Criminal Procedure Code, 1973 (CrPC) against judgment dated 23.10.2013 and order on sentence dated 25.10.2013 passed by Ld. MM (Municipal 01). Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 1 of 11
2. By the impugned judgment, the appellant was convicted for the offences punishable u/s. 416/417 read with s. 461 of the Delhi Municipal Corporation Act, 1957 (for short "the DMC Act") and sentenced to pay fine of Rs. 5,000/ and Rs. 1,000/ respectively. In default of payment of fine, the appellant was directed to undergo simple imprisonment for 15 days.
3. The case of the prosecution against the appellant was that on 21.03.2013 at about 3.10 p.m., one Sh. Pawan Kapoor, Inspector (CW1) visited the premises of the appellant at 30/114, Gali No. 6, Vishwas Nagar, Shahdara, Delhi, and found that at the said premises, the appellant was running trade of Die Cutting and Lamination Works with 10 H.P. (approx.) without MPL Licence and in a nonconfirming area. CW1 thus prepared a challan for the offences punishable u/s. 416/417/430/461 of the DMC Act. It was the admitted case of the prosecution that the appellant was not present at the time of the said visit of CW1.
4. The appellant contested the case.
5. Prosecution examined CW1 as noted above. It also examined CW2 Sh. Rajbhushan Sharma. The appellant, in his defence, himself appeared as DW1.
6. After considering the evidence and the material on record, the Ld. MM held the appellant guilty and convicted him as noted heretobefore. Ld. MM believed the testimony of CW1 regarding his visit to the premises. He also took into consideration the defence evidence.
7. Feeling aggrieved, the appellant has filed this appeal on various grounds. Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 2 of 11
8. I have heard Sh. Abhishek Rana, Ld. Counsel for the appellant and Sh. Vivek Sharma, Ld. Counsel of the respondent.
9. Ld. Counsel for the appellant criticized the judgment of the Ld. MM submitting that the same is based on surmises and conjectures. He vehemently argued that there was no evidence at all that the appellant was running any machine of 10 H.P. in the premises. He highlighted that the Ld. MM did not appreciate the evidence correctly. He read out the crossexamination of CW1 and submitted that from the perusal of the same, it was amply clear that the respondent had no case at all.
10. Ld. Counsel for the respondent, on the other hand, supported the impugned judgment. He submitted that Ld. MM reached to the correct conclusions.
11. It will be fruitful to reproduce the relevant provisions of the DMC Act at this stage. Secs. 416, 417, 430 and 461 of the DMC Act read as under:
"416. Factory, etc., not to be established without permission of the Commissioner (1) No person shall, without the previous permission in writing of the Commissioner, establish in any premises, or materially alter, enlarge or extend, any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power.
(2)The Commissioner may refuse to give such permission, if he is of the opinion that the establishment, alteration, enlargement or extension of such factory, workshop or trade premises, in the proposed position would be objectionable by reason of the density of the population in the neighbourhood thereof, or would be a nuisance to the inhabitants of the neighbourhood.
Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 3 of 11
417. Premises not to be used for certain purposes without licence (1) No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, namely:--
(a) any of the purposes specified in Part I of the Eleventh Schedule;
(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;
(c) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or
(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any of those articles:
Provided that the corporation may declare that premises in which the aggregate quantity of articles stored for sale does not exceed such quantity as may be prescribed by byelaws in respect of any such articles shall be exempted from the operation of clause (d).
(2) In prescribing the terms of a licence granted under this section for the use of premises as mills or iron yards or for similar purposes the Commissioner may, when he thinks fit, require the licensee to provide a space or passage within the premises for carts for loading and unloading purposes. (3)The Corporation shall fix a scale of fees to be paid in respect of premises licensed under subsection (1):
(4)Provided that no such fee shall exceed five hundred rupees.
430. Signature, conditions, duration, suspension, revocation, etc., of licences and written permissions (1) Whenever it is provided in this Act or any byelaw made thereunder that a licence or a written permission may be granted for any purpose, such licence or written permission shall be signed by the Commissioner or by the officer empowered to grant the same under this Act or the byelaws made thereunder or by any municipal officer authorised by the Commissioner or such officer in this behalf and shall specify in addition to any other matter required to be specified under any other provision of this Act or any provision of any byelaw made thereunder--
(a) the date of the grant thereof;
(b) the purpose and the period (if any) for which it is granted; Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 4 of 11
(c) restrictions or conditions, if any, subject to which it is granted;
(d) the name and address of the person to whom it is granted; and
(e) the fee, if any, paid for the licence or written permission. (2) Except as otherwise provided in this Act or any byelaw made thereunder, for every such licence or written permission a fee may be charged at such rate as may from time to time be fixed by the Commissioner with the sanction of the Corporation and such fee shall be payable by the person to whom the licence or written permission is granted.
(3) Save as otherwise provided in this Act or any byelaw made thereunder any licence or written permission granted under this Act or any byelaw made thereunder may at any time be suspended or revoked by the Commissioner or by the officer by whom it was granted, if he is satisfied that it has been secured by the grantee through misrepresentation or fraud or if any of its restrictions or conditions has been infringed or evaded by the grantee, or if the grantee has been convicted for the contravention of any of the provisions of this Act or any byelaw made thereunder relating to any matter for which the licence or permission has been granted:
Provided that-- (a) before making any order of suspension or revocation reasonable opportunity should be accorded to the grantee of the licence or the written permission to show cause why it should not be suspended or revoked;
(b) every such order shall contain a brief statement of the reasons for the suspension or revocation of the licence or the written permission. (4) When any such licence or written permission is suspended or revoked, or when the period for which the same was granted has expired, the grantee shall, for all purposes of this Act or any byelaw made thereunder, be deemed to be without a licence or written permission until such time as the order suspending or revoking the licence or written permission is rescinded or until the licence or written permission is renewed.
(5)Every grantee of any licence or written permission granted under this Act shall at all reasonable times, while such licence or written permission remains in force, if so required by the Commissioner or the authority by whom it was granted, produce such licence or written permission.
461. Punishment for certain offences (1) Whoever--
(a) contravenes any provision of any of the sections, subsections, clauses, provisos or other provisions of this Act mentioned in the first column of the Table Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 5 of 11 in the Twelfth Schedule; or (b) fails to comply with any order or direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, subsections, clauses, provisos or other provisions, shall be punishable
--
(i) with fine which may extend to the amount, or with imprisonment for a term which may extend to the period, specified in that behalf in the third column of the said Table or with both; and
(ii) in the case of a continuing contravention or failure, with an additional fine which may extend to the amount specified in the fourth column of that Table for every day during which such contravention or failure continues after conviction for the first such contravention or failure.
(2)Notwithstanding anything contained in subsection (1), whoever contravenes the provisions of subsection (1) of section 317 or subsection (1) of section 320 or subsection (1) of section 321 or subsection (1) of section 325 or section 339, in relation to any street which is a public street, shall be punishable with simple imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both."
12. It was necessary for the respondent to establish that:
a). the appellant was having ownership or possession of the premises in question;
b). that the appellant was running a trade of Die cutting and Lamination works with 10 H.P. in those premises.
c). and that he was running the said trade without a licence.
13. There is no dispute that the premises belong to the appellant as the same has not been denied anywhere.
14. The appellant had taken the defence that CW1 never visited his premises. The appellant had stated in his evidence that he was not present at the time of the alleged visit of CW1. Ld. MM negatived this defence observing that CW1 also had stated that the appellant was not present when he (CW1) Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 6 of 11 visited the premises on 21.03.2013 and observed that thus CW1 was believe worthy.
15. Another defence of the appellant was that the prosecution failed to prove that any factory was being run therein. Ld. MM resolved this issue by observing that the word 'factory' was used in general sense and not as for the purposes of the Factories Act.
16. The appellant had contended before the Ld. MM that there was no evidence of running of any machine. It was argued that there were no photographs; there was no seizure of any machine; there was no statement of any workman allegedly working there; etc. These contentions were also dispelled by Ld. MM by observing that the prosecution i.e. EDMC was not having trained investigators and that it was not so competent to conduct foolproof investigation.
17. The trial court taking the evidence of CW1 as gospel truth, held that the appellant was guilty.
18. It is settled law that the prosecution has to stand upon its own legs. It is required to prove the guilt of the accused beyond reasonable doubt. The fact that the prosecution in the present case was conducted by EDMC does not make any difference. This rule of prudence which is now a rule of law cannot be diluted merely because the prosecution was launched and conducted by the EDMC. They deserve no different treatment.
19. If the investigators of EDMC are not trained enough, it is obligatory Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 7 of 11 on it to provide such training to them. Omission on its part in not giving training cannot be any excuse to ignore the rules of evidence. If sufficient evidence is not collected, they must not launch any prosecution.
20. In my considered opinion, Ld. MM fell into grave error in discarding the rules of evidence. The burden on the prosecution was very heavy, as is the case in any other prosecution, and it failed to discharge the same in the present case.
21. Ld. MM believed CW1 merely because CW1 also stated that appellant was absent at the time of his visit and appellant too took the plea that he was absent. Though this cannot be the any basis to believe testimony of CW1, still if it is taken to be so, even then at best it proved that CW1 visited premises of appellant. It was no evidence at all to prove that the appellant was running any trade therein. CW1 was required to give positive evidence regarding that fact. The crossexamination of CW1 would demonstrate his total ignorance. He did not take any photographs of the site; he was not aware of the names or numbers of the workmen working there; he was not aware of the number of machines or their make or horsepower; he was not aware of the items being manufactured there; he was unaware of how many rooms and floors were occupied for the purposes of the socalled factory; and he did not seize any manufactured items.
22. Had CW1 visited the premises in question, he must have been aware of some details as noted above. But CW1 miserably failed to divulge any such Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 8 of 11 details. It was very unsafe to act upon the evidence of such a witness. The crossexamination had demolished evidence of CW1. Ld. MM failed to appreciate that.
23. Ld. Counsel for appellant had contended that there was no factory being run in the premises and there was no evidence led by the prosecution to this effect. As noted hereinabove, Ld. MM rejected this argument by observing that the word 'factory' was used in loose sense. He observed that the challan was for running 'trade' and not 'factory'. He also held that the Factories Act was not applicable.
24. In my view, Ld. MM failed to take notice of Sec. 2 (17) of the DMC Act which provides that the term 'factory' has the same meaning as defined in the Factories Act, 1948. CW1 was a Factory Inspector. He could not have used this term 'factory' in loose sense.
25. CW1, however, had made challan for running 'trade' of Die cutting and Lamination Works. What does it mean? It means that some machines were being used for die cutting and lamination works. This type of work could not have been done except by using machines. CW1 has also deposed that when he reached the premises, he found work of die cutting and lamination was going on with power load of 10 HP. This also means that some machine(s) was/were being run. This being the position, it was imperative for CW1 to atleast provide some details of the machines and workmen. He was required to give evidence of such 'trade'. CW1 having failed to provide any such details, the offence u/s Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 9 of 11 416 of DMC Act could not be made out. Ld. MM took into consideration the copy of electricity bill (Ex. DW1/8) provided by the appellant in his defence evidence. The connection was of 'commercial' category. From this, Ld. MM inferred that some commercial activity was going on. In my considered view, this could not be basis of concluding that trade of diecutting and lamination work was going on. It is to be noticed that the appellant had explained in his evidence that he was merely storing some cardboards. The electricity was being used for that purpose. But it was not being used for trade diecutting and lamination works.
26. Ld. Counsel also argued that Ld. MM wrongly convicted appellant for the offence punishable u/s. 417 of DMC Act for storing cardboards. He contended that in the notice of accusation u/s 251 CrPC, there was no mention of storage of cardboards.
27. The grievance of the appellant is justified. The accused was not put to notice about offence u/s 417 of DMC Act for storing cardboards. Rather, the allegations against the appellant was that he was running trade of Die cutting and Lamination Works at the premises in question. This has caused grave prejudice to him. It was required of Ld. MM to give proper notice of accusation to the appellant. No where in the notice of accusation dt. 7.6.2012, fact of storage of cardboards is mentioned.
28. It was never the case of the prosecution that appellant was storing cardboards. Rather, this fact came to light in defence evidence. Ld. MM taking note of this held that offence u/s 417 of DMC Act was also made out. Ld. MM Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 10 of 11 erred here also. Prosecution was required to specifically allege this in its case. Omission to do the same has caused prejudice to the appellant. Suppose, if the appellant in his defence evidence would have shown storage of any other article, would Ld. MM have convicted him for storing that article? There are about 96 articles mentioned in Part II of the Eleventh Schedule of the DMC Act. Would Ld. MM wait for defence evidence and see what article is deposed to by the accused as stored by him and then convict him for storing such an article? Or should he in the first instance see the allegations of the prosecution and determine what is the case of the prosecution i.e. for storing which article the allegations are there? The prosecution cannot depend on defence evidence to give clarity to its allegations. There was no case of the prosecution for storage of the cardboards. Conviction u/s 417 of DMC Act is also bad in law.
29. Consequently, the appeal is hereby allowed. The impugned judgment and order on sentence are hereby set aside. The appellant is hereby acquitted of the allegations. The bail bonds already furnished by appellant are accepted further for a period of six months for the purposes of S. 437A of CrPC.
30. A copy of the judgment be placed in the TCR and same be sent to court concerned immediately.
31. Appeal file be consigned to Record Room.
Announced in open court
th
on 7 day of April, 2014 (Sanjay Bansal)
ASJ03 (East)
KKD Courts: Delhi
Crl Appeal No. 20/14 Vipin Kaushik v. EDMC Page No. 11 of 11