Delhi District Court
State vs . : Rajender Tyagi Etc. on 3 August, 2018
IN THE COURT OF SH. VIKRAM, MM01, NORTH DISTRICT,
ROHINI COURTS, DELHI.
State Vs. : Rajender Tyagi etc.
FIR No. : 213/08
P.S. : Narela
U/s : 7/10/55 of Essential Commodities Act
JUDGMENT
a) Registration no. of the case : 5290200/16
b) Name & address of the :Jaljeet Dabas
complainant Inspector Enforcement Branch
Food Supplies & Department
K Block, Vikas Bhawan, New Delhi
c) Name & address of accused : (1) Rajender Tyagi
S/o Sh. Chandgi Ram
R/o H. No. 692, Village Burari,
Delhi.
(2) Karan Singh
S/o Sh. Rajender Tyagi
R/o H. No. 49, Gali No.2B,
Amrit Vihar, Burari, Delhi
d) Date of Commission of offence : 01.05.2008
e) Offence complained off : U/s 7/10/55 EC Act
f) Plea of the accused : Pleaded not guilty
State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.1 of 17
g) Final Order :Acquitted
h) Date of such order : 03.08.2018
Date of Institution : 28.06.2008
Final Arguments heard on : 31.07.2018
Judgment Pronounced on : 03.08.2018
BRIEF STATEMENT OF REASONS FOR DECISION:
1. In brief the case of prosecution is that on 30.04.2008 at about 10.30.pm at outside FCI Godown, Narela, near railway crossing, Delhi within the jurisdiction of PS Narela accused Amit Tyagi being the proprietor of M/s Amit Transport Company and accused Rajender have diverted approximately 700 bags of wheat/rice which were meant for PDS which were found in his truck bearing no. HR55E9517 without the details regarding destination, name of the contractor etc. placed in front of the truck which is necessary for vehicles carrying PDS commodity and thereby the accused violated the provision of Public Distribution System (PDS) (Control order 2001) and Delhi Specified Articles (Regulation of Distribution), order 1981 issued U/s 3 of Essential Commodities Act and thereby committed the offence Punishable U/s 7 of Essential Commodities Act.
2. Accused were summoned and after supplying the copy of challan to their satisfaction, accused were heard on notice and on 12.08.2014 State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.2 of 17 finding prima facie case being made out, accused persons were served with notice for commission of offence u/S 7 of Essential Commodities Act. Accused pleaded not guilty and claimed trial.
3. To prove its case prosecution examined 25 witnesses. A gist of their testimony is as under: Pw1 Sh. Jaljeet Dabas deposed that on 30.04.2008 an information was received by FSO (enforcement) from Smt. Saroj Chaudhay, president Mahila Samaj, Jan Chetna Samiti, Shadi Khampur, West Patel Nagar, Delhi08 that vast quantity of wheat and rice meant for PDS has been diverted for black marketing near FCI Godown Narela. Hence, on the instructions of FSO (Food and Supply Officer) enforcement, he along with Sh. Gopal Kumar Madhav reached at outside FCI godown near Railway Crossing at about 10:30 p.m. There they found one truck (18 wheels) bearing registration no. HR55 E9517 loaded with approximately 700 bags (50 kg each) of wheat and rice meant for PDS (Public distribution supply) and the said truck was detained by Smt. Saroj Chaudhary and her team. On inquiry Karan Singh driver of the aforesaid truck disclosed that aforesaid wheat and rice was loaded in that truck from four other trucks on the direction of Sh. Rajender Tyagi who was owner of the said wheat and rice. Karan Singh handed over to them 9 weight check memos with its carbon copy from the cabin of the aforesaid truck which contained details of truck numbers, WCM number, State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.3 of 17 FPS No. Commodity and quantity. He also found that some of the bags were bearing FPS No. as given in the WCM and no banner regarding details i.e destination, name of contractor etc., was placed at the front of th truck which is necessary for the vehicles carrying PDS commodities, thus it was evident that aforesaid truck was heading for blackmarketing of wheat and rice meant for PDS. He took into possession aforesaid 9 weight check memos with its carbon copies vide recovery memo which is Ex. PW 1/A. Thereafter, they seized aforesaid 700 bags of wheat/rice and also aforesaid truck vide seizure memo Ex. PW 1/B. Thereafter, police was informed about the same. He gave a written complaint to IO with aforesaid documents and aforesaid case properties i.e. truck and 700 bags of wheat/rice. PW1 proved his written complaint Ex. PW 1/C. Pw2 Ramesh Chand deposed that on 03.05.2008 at about 4:00 p.m. two inspectors from Food and Supply Department came to the shop and seized the record of current period. He had deposited demand drafts for supply of 28 quintals of rice and 64 quintals of wheat for the month of April 2008. He had received the aforesaid wheat but he had not received the rice. PW3 proved the recovery cum counting cum Wheighment cum seizure memo Ex. PW 2/A. PW3 GK Madhav deposed in the line of PW1 about the raid dated 30.04.2007. PW3 also deposed that on 03.05.2008 he along with Inspector Hari om had checked two fair price shops bearing Nos. 247 State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.4 of 17 and 8641. They had seized the relevant records through recovery cum counting cum weighment memo Ex. PW 3/A and Ex.PW 3/B respectively and sent the said memos and documents to the higher officers.
PW4 Sh. A.K. Upadhyay deposed that on 01.05.2008 he had given a certificate to PS Narela regarding vehicle/truck no. DL1GA7136 and another truck number no. HR38E4550 in response to their letter dated 05.05.2008. He also deposed that inadvertently in his previous certificate he had mentioned truck no. HR 1GA7376 in place of HR 1GA7136. PW4 proved the certificate as Ex. PW 4/A and his reply dated 06.05.2008 as Ex. PW 4/B. PW 5 Sh. Jagram deposed that on 03.05.2008 on the instruction of senior officers, he along with Inspector Ashish Mishra went to check the stock register and other related documents of FPS No. 238, FPS no. 4154 and FPS No. 5770 and after checking the stock took into possession relevant documents vide recovery cum counting cum weightment memo which is Ex. PW 5/A, Ex. PW 5/B and Ex. PW 5/C. PW 6 Manoj Tomar deposed that on 03.05.2008 on the instruction of senior officers, he along with Inspector Gopal Aggarwal went to check the stock and other related documents of FPS No. 6119, FPS no. 5876 and FPS no. 6658. They checked the stock and also took into possession relevant documents vide recovery cum counting cum weighment memo Ex. PW 6/A, Ex. PW2/A and Ex. PW 6/B. State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.5 of 17 PW 7 Ashish Mishra deposed that on 03.05.2008 on the instruction of senior officers he along with Insp. Jagram went to check the stock register and other related documents of FPS no. 238, FPS no. 4154 and FPS no. 5770 and after checking the stock took into possession relevant documents vide recovery cum counting cum weighment memo which are Ex PW 5/A, Ex. PW 5/B and Ex. PW 5/C. PW8 Hari Om deposed that on 03.05.2008 on the instruction of senior officers, he along with inspector GK Madhav went to check the stock register and other related documents of FPS no. 247 and FPS no. 8641 and after checking the stock took into possession relevant documents vide recovery cum counting cums weighment memo which are already Ex. PW 3/A and Ex. PW 3/B. PW9 P.C. Rai was posted as manager at Delhi State Civil Supplies Corporation Ltd. PW9 summerised the process of issue of SFA from FCI Godown as The food supplies are released vide a circular upon which allocations were made as to various quota ration shops by the F & S department. The drafts related to the payments as to food grains are deposited by Circle Officers directly to FCI and payments as to transportation charges to DSCSC Ltd. Thereafter once these formalities are completed release orders are issued by the FCI for each FPS (ration shop). The above mentioned released orders are sent to issue points (godown) and thereafter the authorized transporter who is authorized State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.6 of 17 by Delhi State Civil Supply (yearly contract) reaches the issue points and thereupon stock of foodgrain are loaded in the trucks in the presence of officials of DSCSC. All the trucks coming to the issue points make arrival and departure entries at the FCI gate and the bus and truck are even weighed if carry food grains. After weighing the loaded trucks weight check memos are also prepared and gate pass is issued upon which the truck departs from issue points. Gate pass is deposited at the main gate of FCI upon which relevant entries were made in their registered upon which the drivers were allowed to depart from the compound. There is a record in their office as to authorized representatives of the contractor and the truck numbers that transport the food grains from the godowns in usual course. The contractor (transporter) has his authorized representative at the godowns (issue points) to overlook the day to day working on behalf of the contractor.
PW 10 Sh. Gopal Aggarwal deposed that on 03.05.2008 on the direction of seniors he along with Sh. Manoj toma, Inspector in the same branch visited the business premises of three FPSs situated separately in and around Gandhi Nagar vide Nos. 6658, 6119, 5876 and met the licensees of aforesaid mentioned FPSs. In their presence, they seized current relevant record of the concerned FPSs from concerned licensees vide recovery cum seizure memo already Ex. PW 6/A and Ex. PW 6/B and Ex. PW 2/A. They also weighed the stock of SFAs lying in the State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.7 of 17 concerned FPSs in the presence of their licensees. They had also taken statements of licensees of concerned FPSs. They also prepared inspection reports Ex. PW 10/A (colly) running in three pages in respect of FPS No. 6119. They had also prepared stock verification statement Ex. PW 10/B with regard to FPS no. 6119. They also prepared inspection reports Ex. PW 10/C (colly) in respect of FPS no. 5876. They had also prepared stock verification statement Ex. PW 10/D with regard to FPS no. 8576. They also prepared inspection reports Ex. PW 10/E (colly) in respect of FPS no. 6658. They had also prepared stock verification statement Ex. PW 10/F with regard to FPS no. 6658.
PW11 Sh. Satish Kumar deposed that on 03.05.2008 Inspectors of Food and Supply Department visited his shop and checked the stock and seized the relevant records. He deposed that he was supposed to receive 93 quintal of wheat and 40 quintal of rice for the month of April 2008 for which he had deposited the drafts with the department but he had not received the same. PW11 is witness to seizure memo Ex. PW 6/B. PW12 Karan Singh deposed that he was the owner of truck no. HR 381G4550. He deposed that the management of transport company was handed over to the father of Amit Tyagi i.e. Rajender Singh Tyagi who used to supply wheat/rice to the FPS shops.
PW13 Smt. Seema is the licensee of shop no. 8641 of FPS. She deposed that on 03.05.2008, two inspectors of food and supply State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.8 of 17 department had visited her shop and had checked shop. They also showed their identity card. They had seized the relevant record and the receptive memo were prepared. She also deposed that in the month of April, 58 quintals of wheat and 20 quintals of rice of 41 kg were brought to her shop which was duly distributed, however, the wheat of quantity about 4 quintal and of 59 kg was not received by her for which she had deposited money.
PW14 Abhinandan is the registered owner of the truck bearing no. DL1G7136. He was declared hostile.
PW15 Manmohan Singh was posted as Depot Officer at FCI Godown Narela, Delhi on 18.06.2008. His duty was to hand over the wheat and rice to the DSCSC. PW15 was declared hostile.
PW16 Salim was also declared hostile..
PW17 HC Mahavir Prasad deposed that on 01.05.2008 he along with SI Dinesh had arrested one person namely Karan Singh near FCI Godown Narela Delhi vide arrest memo Ex.PW 17/A and conducted his personal search vide memo Ex. PW 17/B. PW17 deposed that at the instance of the accused Karan Singh, accused Rajinder Singh Tyagi was arrested from near FCI Godown Narela Delhi vide arrest memo Ex. PW 17/C and his personal search was conducted vide memo Ex. PW 17/D. State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.9 of 17 PW18 ASI Champa Topo deposed that on 01.05.2008 she was working as duty Officer who recorded the FIR and proved the same as Ex PW18/A and made endorsement on rukka Ex PW18/B. PW19 Retd. SI Mahender Singh is second IO. PW19 proved arrest and personal search of accused Amit Tyagi as Ex PW19/B and Ex PW19/C and disclosure statement of accused Amit Tyagi Ex PW19/A. PW 20 Ms. Saroj Chaudhary deposed that on 30.04.2008 at about 8:00 p.m. one truck bearing no. HR 55E 9517 which had loaded material i.e. grain and rice from FCI godown was tracked by them as they had informed that some of the foodgrains which were mean to be supplied to poor persons, were being black marketed. The above said truck had moved from FCI godown and was going towards Narela Anaaj Mandi and area was forest area. They stopped the truck near a place at Narela Village. Thereafter, they called the police as well as FCI officials. Police, FCI officials and media also reached there. Thereafter, the truck was taken to police station were the stock loaded on the truck was counted. In the police station, driver told that the truck belongs to one Rajender Tyagi.
PW21 Vijay Kumar brought the original weight check memo, book no. 47, serial no. 4666 to 4670 and book no. 30 serial no. 2901 to 2905 dated 30.04.2008 and proved the copy of same as Ex PW21/A(Colly).
State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.10 of 17 PW 22 Smt. Rajbiri Devi deposed that her husband namely Ramdhan was the license holder of fair price shop no. 5770. On 03.05.2008 at around 12:15 p.m. two inspector from FCI came to her shop and asked her for the record. According to the record 57 quintle wheat and 19 quintal rice were issued to her from FCI. She deposed that in the month of April no such goods were received by her shop.
PW 23 D.K. Khurana brought the summoned record i.e. letter no. F.15(30)/2006/PDS/HQ/DSCSC/301 dated 01.04.2008 and ATR bearing no. F.15/FIR/08/PDS/DSCSC/559 dated 12.05.2008 duly certified. The same were taken on record and Ex. PW 23/A and Ex.PW 23/B PW 24 SI Dinesh Dahiya is first IO. During investigation, he arrested truck driver namely Karan Singh and Rajender Tyagi. He also conducted the personal search of both these accused persons. He recorded disclosure statements of both of them.
PW 25 Duli Chand was declared hostile.
4. After completion of prosecution evidence, accused persons were examined u/S 313 Cr.P.C in which all the incriminating evidence appearing against the accused persons were put to them. Accused persons claimed innocence stating that false complaint was lodged against them and they were falsely arrested. They opted not to lead State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.11 of 17 evidence in their defence. Hence, the matter was listed for final arguments.
5. I have Ld. APP and Ld. Defence Counsel and have carefully gone through record.
6. The charge against accused persons is of violation of provision of public distribution system(PDS) (Control) Order 2001 and Delhi Specified Articles ( Regulation of Distribution) order 1881. The instance for which this violation has been claimed is that the truck of accused Rajender Tyagi which was not actually used for loading the SFA was found containing 700 bags of SFA and those 700 bags were unloaded to truck of accused Rajender Tyagi from the trucks supplied by accused Amit Transport the proprietor of which is accused Amit Tyagi. It is further claimed that the truck in which the SFA were loaded was not having any banner showing destination of SFA and name of contractor which is in violation of control order.
7. The defence has not disputed the seizure of truck of Rajender Tyagi and 700 bags of SFA loaded therein. However, it is disputed that there was any diversion for black marketing. Ld defence counsel would submit that it was last day of month and since there was heavy rush it was necessary for the accused to pick up the entire quota for that month for which his trucks, which were loaded from the godown, would not have returned back in time to pick the entire quota. Therefore, SFAs State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.12 of 17 which were loaded in the trucks in the godown were shifted to the bigger truck which was stationed outside the godown, so that the small trucks could be used again for loading the remaining quota. Defence would also submit that had this exercise had not done the accused would not have lifted the entire quota and the quota not lifted from godown would not have been allowed to lift again on subsequent day and the money deposited for that quota would have been forfeited. Defence would also submit that there is no violation of any terms or condition of Control order 2001 or of 1981.
8. It is admitted by PW1, PW3, PW4 and PW9 in their cross examination that on the last day of month there remains huge pressure on the transporter to lift the balance stock of that month and it is usual in every month. There is also admission of these witnesses that the quantities for which the demand drafts have been deposited with the FCI are to be lifted within the same month in which the drafts have been deposited. Therefore, there is an urgency with the transporter i.e. accused no.1 Rajender Tyagi who had deployed the trucks of accused Amit Tyagi to lift the entire balance stock lying in the FCI Godown, for which Rajinder Tyagi had stationed a bigger truck of 18 tyres which could carry load of more than small trucks.
9. It is also the case of prosecution that the truck No.HR55E9517 in which the 700 bags were found loaded and was without any banner State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.13 of 17 detailing the destination, name of contractor etc., was having 9 WCMs of different trucks. The WCMs which were seized from the truck in which SFA were loaded are Ex PW21/A(Colly) and these WCMs are of two vehicles i.e. DL1GA7136 and HR 38G4550. It is the case of prosecution that the truck no.HR 55E9517 was found containing SFA of four trucks which means that these two trucks i.e. DL1GA7136 and HR38G4550 must have entered the FCI Godown premises atleast twice on that day but no alarm was raised by any DSCSC official in the godown. Neither the official present at the gate, who issues gate pass, objected for the same. Therefore, it implies that the officials at the godown present were aware that SFAs from these two trucks have been shifted to some other bigger vehicle and those trucks were allowed to take the delivery again. Had it been an offence or in violation of any control order or law, the truck no.DL1GA7136 and HR38G4550 would not have been allowed to reenter in the godown without first showing the delivery of SFAs previously loaded.
10. This drive was initiated on the alert of PW20 Ms Saroj Chaudhary who informed about diversion of SFA. As per PW20 the truck in which 700 bags were found loaded had moved from FCI Godown and was going towards Narela Anaj Mandi and she along with her NGO members stopped the truck near Narela Village and called the police. However, the Enforcement Inspector PW1 and PW3 have deposed that the truck State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.14 of 17 was stationed outside the FCI godown about 50 meters away from the gate of godown. This means that when PW20 is deposing about the position of truck she is deliberately exaggerating the events to show that the accused had committed diversion. Whereas it is a case where the accused persons had used two small trucks to take the SFAs from FCI Godown and shifted the SFA to bigger truck to accommodate more SFAs. Could it be called diversion?
11. Control order dated 31.08.2001, GSR No.630(E) specifies diversion in explanation (i) in Clause 6 of Public Distribution System(Control) order 2001 that "diversion means unauthorized movement or delivery of essential commodities released from Central Godown but not reaching the intended beneficiaries under the public distribution system."
12. As per explanation (i) there are two ingredients for diversion. First it has to be an unauthorized movement and second it must not reach intended beneficiaries. In the case in hand, although it appears an unauthorized movement when the SFA from truck no.DL1GA7136 and HR38G4550 were shifted to truck no.HR55E9517 but the second essential ingredient i.e. SFA not reaching to the intended beneficiaries is not made out. In fact, the SFAs were stopped from moving at a distance 50 meters outside the godown itself. Therefore, there was not even an attempt to divert the essential commodity.
State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.15 of 17
13. The Delhi specified articles (Regulation of distribution) order, 1981 at clause 21A provides movement of specified articles that "the owner of a person incharge of goods vehicle shall carry with him a trip sheet in the prescribed form D and cash memo/bill of sale in respect of such specified articles carried in the goods vehicle and produced the same for inspection on demand before the persons authorised under clause 25 of the order."
14. All that is required under clause 21A of control order 1981 is that the person incharge of the goods vehicle shall carry with him the trip sheets. It is the case of prosecution itself that all the WCM were there in the cabin of truck no.HR55E9517 which were seized from the truck itself.
15. There is no requirement of having any banner or sign in the truck or any delivery vehicle showing the destination of PDS or name of contractor, as accused are charged, in any of these two control orders of 1981 or 2001. It is pertinent here to record that the prosecution did not file any control order on record neither proved it. Both these control orders were supplied by Ld Defence Counsel while addressing the arguments in defence.
16. It is the job of prosecution to prove the charges beyond reasonable doubt. Therefore, prosecution is required to establish that by shifting the goods to another truck and by not placing any banner on the truck, State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.16 of 17 disclosing the destination of SFA and the name of contractor, the accused persons have violated the terms and conditions of control orders, as alleged. There are no such terms or conditions. The suspicion with PW20 about the diversion could be justified when she witnessed shifting of SFA from one truck to another. However, as discussed above, it was not an intended diversion but to pick the quota of that month which would have lapsed, had the accused had not reused trucks assigned with the FCI for picking the SFA. The truck no.HR55E9517 was not authorised to carry the SFA as it was not listed with the FCI by the accused persons but there was no actual diversion. The suspicion of black marketing was just a suspicion which was not even attempted by the accused persons.
17. In view of the discussion above held, I do not see any violation of control order committed by accused persons and there is no apparent evidence to show any ill intent of the accused persons. Hence, I am of the view that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Therefore, accused persons are acquitted of the charges levelled against them. Dictated & Announced in Open Court Digitally signed by VIKRAM On the 3rd day of August, 2018 VIKRAM Date: 2018.08.03 17:01:57 +0530 (Vikram) MM01/North/Rohini Courts Delhi/03.08.2018 State vs Rajender Tyagi etc. FIR No.213/08 Dated: 03.08.2018 Page No.17 of 17