Delhi District Court
State vs . on 8 July, 2022
iL a) aoe DLSE020001 102002 IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE-O6, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI STATE VS. FIR NO: P.S Cre No./87487/2016 JUDGMENT
Date of its institution Name of the complainant Date of Commission of offence Name of the accused Babu Lal & Ors 52/2000 Kalkaji 24.04.2001 Rt. AVTO Rattan Singh, R/o H. NO. 28, Pratap Nagar, Hari Nagar, New Delhi.
20.01.2000
1. Babu Lal, S/o Sh. Shankar Lal Gupta, R/o H. NO. L-61, 3°? Floor, Kalkaji, New Delhi.
2. Manku Ram, S/o Sh. Lal Shah, R/o H. NO. E-69, Madi Pur Colony, New Delhi.
3. Jeevan Kumar, S/o Sh. Madhu Turi, R/o H. NO. 1061/10, Govind Puri,New Delhi. (absconder vide order dt. 09.04.2014) Offence complained of 3/7 E. C. Act & 407 IPC Plea of accused Not Guilty Case reserved for orders 26.05.2022 Final Order Acquitted | Date of orders 08.07.2022 BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, | seek to dispose off the case of the prosecution filed against the accused persons namely Babu Lal and Manku Ram for having committed the offence punishable. u/s 407 of Indian Penal Code, 1861 (hereinafter referred as *"IPC") and Section 3/7 of Essential Commodities Act, 1995 (hereinafter referred as E. C. Act).
2. Briefly stated, as per the case of prosecution Manku Ram was the driver. of the tanker bearing registration no. DL 1GB 2483. On 20.01.2000, he had got his tanker filled with approximately 12,000 litre of kerosene oil from Hindustan Petroleum Corporation Limited situated at Bijwasan Depot, New Delhi. The tanker was loaded with kerosene oil for M/s Dheerumal Kapoor and Sons. The said kerosene oil was supposed to be distributed to several depots for public distribution. The kerosene oil was also restricted commodity under E C Act. After getting the tanker loaded with kerosene oll, the accused Manku Ram departed to distribute the same to the depots mentioned in the invoice. However, at around 09:00 PM, the enforcement officials of Food and Supply Department, had seen the accused Manku Ram unloading kerosene oil from his tanker to a godown situated at Kalkaji. The said godown was owned by accused Babu Lal. The kerosene oil was being unloaded through an ejecting pipe. When the enforcement officials asked the accused to show the relevant document for unloading kerosene oil at the spot, he could not produce the same. Thereafter, tanker along with kerosene oil found in the gallons of said godown were seized. Thereafter, officials from the Anti Hoarding Department reached at the spot and local police officials were also informed about the incident.
After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge u/s 407 IPC & 3/7 E C Act was framed against the accused Manku Ram vide order dated 10.11.2003, to which he pleaded not guilty and claimed trial, Further, separate charge u/s 3/7 E C Act was framed against accused Babu Lal to which he pleaded not guilty and claimed trial.
4. During the pendency of the trial accused Jeevan Kumar was declared absconder vide order dated 09.04.2014.
5. In order to prove the guilt of accused persons, the prosecution had examined following nineteen witnesses:
° Retired AVATO Rattan Singh deposed as PW-1, * Sh. KP Singh deposed as PW-2;
¢ Sh. Kiran Pal Singh deposed as PW-3;
* Sh. Ajay Kumar deposed as PW-4;
e Sh. Dinesh Kumar deposed as PW-5;
e Sh. Dilip Kumar deposed as PW-6;
e AS! Adlosminz deposed as PW-7;
* ASI Bhagwat Swaroop deposed as PW-8;
¢ Sh. MS Dhir deposed as PW-9;
e SI Narender Pal deposed as PW-10;
e Sh. Raghuvesh Kumar Bhatt deposed as PW-11;
» Sh. Ashok Kumar deposed as PW-12:
e HC R Ramesh Kumar deposed as PW-13;
* HC Brijbir Singh deposed as PW-14;
* Sh. Jagjeet Singh deposed as PW-15;
* Sh. Shyam Babu deposed as PW-16;
® Retired SI Mohan Singh deposed as PW-17;
® Sh. Puneet Khanna deposed as PW-18; and e Sh. Sanjay Kumar Saxena deposed as PW-19.4
tee PW-1 during the examination in chief had deposed that on 20.01.2000, he was posted as Inspector in Enforcement Branch, Food and Supply Department. On that date, on receipt of information, he along with Inspector (Enforcement) K P Singh reached at the spot at godown / shop of accused Babu Lal at Tilak Khand, Govind Puri. They found one kerosene tanker full of kerosene oil measuring about 11500 litre. Another 1300 litre of kerosene oil was found in godown in different gallons. The color of Kerosene oil of some of the gallons was blue and some were white. Accused persons namely Babu Lal and Manku Ram could not produce the bill of those kerosene oil to PW1. The tanker and gallons were sealed. Thereatter, search cum seizure measurement memo Ex. PW1/A was prepared.
PW-2 deposed that on 20.01.2000 he was posted as Inspector in Enforcement Branch, Food and Supply Department, New Delhi. On that day, on receipt of information, he along with Inspector (Enforcement) Rattan Singh reached at the spot i.e. 209, Tilak Khand, Govind Puri. They found one kerosene tanker full of kerosene oil measuring about 11500 litre. The driver of the said tanker was Manku. Another 1300 litre of kerosene oil was found in godown in different gallons. The color of kerosene oil of some of the gallons was blue and some were converted into white. Two persons namely Babu Ram and Manku were present at the spot. Those kerosene oil were meant to be distributed through KOD (Kerosene Ol Depot) 'fot PDS. It was found stored unauthorizedly there which was in the violation of 5 Vv
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kerosene rules. The said kerosene oil was duly sealed and seized vide seizure cum sample memo vide Ex. PW1/A. After seizing the same, he handed over the case property to officials from Anti Hoarding Cell who came later at the spot vide memo Ex. PW2/A. PW2 gave one complaint Ex. PWe/B. PW-3 was the record clerk in Food and Supply Department. He deposed that upon receipt of summon, he brought a photocopy of Gazetted notification no. 300 Ministry of Petroleum and Natural Gas dated 02.09.1993 and same was Marked as Mark A. PW-4 deposed that on 2000, he was working as a salesman at M/s Raju Kerosene Oil Depot. On 20.01.2000, 1700 liters kerosene oil was supposed to be sent by agent Dherumal Kapoor & Sons but it has not reached depot/shop by 10.00 PM in the evening. PW4 enquired the same from the agent, where he had informed me that, the truck would be reaching anytime PW4 waited till 11.00 p.m. but the. truck did not reach. Thereafter, he left the shop/depot. On the next day, some official of Food & Supply had reached his shop and checked his record, sale and purchase. PW-5 deposed that in the year 2000, he was the owner of licence no.3338/92 for Kerosene Oil Depot. On 20.01.2000, in his depot, 1700 liters kerosene oil -was supposed to be sent by agent Dherumal Kapoor & Sons but it did not reach. at depot/shop by 9.30 p.m. He enquired the same from the agent, where he had informed him that the truck would be reaching anytime but it did not reach. : i \/ 11,
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13. Thereafter, he left the shop/depot. On the next day, some official of Food & Supply had reached his shop and checked his record, sale and purchase. PW-6 deposed that in the year 2000, he was the owner of licence No.4045/96 of M/s Kerosene Oil Depot. On 20.01 2000, 1050 liters kerosene oil was supposed to be sent by agent Dherumal Kapoor & Sons but it did not reach at depot/shop and he had waited for it for long time. He had also made an inguiry about the same from the agent, where he had informed him that the truck would be reaching anytime but it did not reach. He had also submitted a demand draft dated 15.01.2000 for buying the same. Thereafter, he left the shop/depot.
PW-7 deposed that in the intervening night of 20/21.01.2000 at about 02:25 AM, he received a rukka which was brought by Ct. Narender. He registered the present case Ex.PW7/A. Thereafter, he prepared endorsement Ex.PW7/B. PW-8 deposed that on 20.01.2000, he was posted at Anti Hoarding Cell, ITO, N- Block, Vikas Bhawan as HC. On that day, he was asked by SI Omvir Singh to join the investigation regarding raiding at Tehkhand, Kalkaji. Thereafter, he alongwith SI Omvir, Ct. Narender reached at the spot and saw that the Food and Supplies Enforcement officials were already there. He also saw that a tanker containing blue kerosene oil had unloaded the said oil from the said tanker and stored at the said godown at Tehkhand. |O Ombir Singh had prepared the rukka and handed over the same to Ct. Narender for getting registration of FIR. Thereafter, Ct. Narender ly
14. returned back at the spot after registration of FIR and had prepared personal search memo of the accused Manku Ram, driver of the tanker and helper Jeevan Kumar and the same were exhibited as Ex.PW8/A and Ex.PW8/B. Thereafter, IO has also prepared the inspection memo of both the accused persons namely Manku Ram and Jeevan Kumar, the same were Ex.PW8/C and Ex.PW8/D. Thereafter, 1O had prepared the arrest memo of both the accused persons vide arrest memo Ex.PW8/E and Ex.PW8/F. IO also prepared the disclosure statement of accused Manku Ram Ex. PW8/G. IO also prepared the production cum seizure memo of the case property already Ex.PW2/A. IO had also recorded his statement. PW-10 deposed that on 20.01.2000, he was posted at Anti Hoarding Cell as Constable. PW10 was asked by IO to join investigation in the present case and he was part of the raiding team. He along with HC Ombir, HC Bhagwat and SI Satish went to the spot i.e. Taikhand Kalkaji for the purpose of recovery of illegal kerosene oii in a tanker at about 09:30 PM. Accused Manku Ram and Jeevan were apprehended at the instance of Food and Supply Officer. In the meantime, lO had also prepared the rukka and handed over the same to PW-10 for getting the FIR registered. Thereaiter, PW-10 returned back to the spot along with orignal rukka and copy of FIR and handed over the same to IO. IO had also prepared the seizure memo of recovered case property. PW10 had also prepared the seizure memo a opening of seal and superdari memos, memos of five delivery kerosene oil and
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18. PW10/A, Ex. PW10/B, Ex. Pwio/C, Ex.
received cash and the same were Ex.
PW10/D, Ex. PW10/E and Ex. PW10/F. PW-11 deposed that on 15.05.2000 in pursuance to the order no.83 of Collector, South/E&S dated 09.05.2000, he had received 3000 kerosene oil on behalf of his father vide kerosene oil licence no.107/72 @548/82 per thousand Kelo liter which was total amounting to As.16442.46/- which he handed over the same to authorize person. Thereafter, he also signed the delivery kerosene oil-cum-receipt case memo already Ex.PW-10/E. The same order was mentioned in the official inspection book.
PW-12 deposed that he brought the record of receipt no. 348597 dated 26.05.2000 of Rs. 70,167/- which was deposed by OIC (B&B) / DDO (HQ), Revenue Department 5, Sham Nath Marg, Delhi-54, same is Ex. PW12/A. PW-13 deposed that on 08.03.2000, he was posted at Anti Hoarding Cell, ITO, Vikas Bhawan, Delhi. He was asked by the IO to collect the sample from PS Kalkaji and got deposited the same at Lab Bharat Petroleum, Punjabi Bagh, New Delhi:
Thereafter, he went to PS Kaikaji to receive the sample and collect the road certificate from MHC M and after depositing the same, he returned back to PS and handed over the road certificate to MHC M. PW-14 deposed that on 11.02.2000 he was posted as constable at Crime team.as photographer. He was called by !O at the spot i.e. plot no. 209 and 121, Tilak 9
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20. Khand Giri Nagar, New Delhi for taking photographs of both the spot. At the instance of 10, he took the photographs of both the spots. Thereafter, he got developed 4 photographs. The photograph of one godown which was sealed and another was of office in the name of Jyoti Proprietors. Thereafter, he handed over the photographs to IO, same are Ex. PW14/A (Colly). 10 also recorded his statement.
PW-15 deposed that in the year 2000 he was posted at Depot Manager at Hindustan Petroleum Corporation Ltd. situated at Bijwasan Depot, New Delhi. In:the month of January 2000, 12000 litres of kerosene was delivered to Dheru Mal Kapoor at 16, Pusa Road, Delhi by his company Hindustan Petroleum Corporation Ltd. situated at Bijwasan Depot, New Delhi vide cash memo NO. 310522 dated 21.01.2000 and it was signed by his sub -- ordinate staff namely Dinesh Dagar for the purpose of releasing of kerosene oil. The said cash receipt memo Ex. PW15/A. PW-16 deposed that in the year 2000, he was the owner of licence no. 2768/84 of Kerosene oil Depot at Sanjay Colony, Bhati Mines. On 20.01.2000 in depot 1700 litres kerosene oil was supposed to be sent by agent Dherumal Kapoor & Sons. but it did not reach depot / shop by 09:30 PM. He made enquiry from the agent, where he had informed him that the truck would be reaching anytime but it did not reach. Thereafter, he left the shop / depot. On the next day, some officials of Food and Supply had reached at his shop and checked his record, sale and purchase. 10
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22. PW-17 deposed that on 09.03.2000, he was posted at PP Govindpuri as ASI. On that date, he received complaint filed u/s 156 (3) Cr.PC which was marked to him for registration of FIR u/s 407 IPC and he got registered FIR NO. 165/2000 which was filed by one Praveen Kapoor against Manku Ram and have recorded statement of Praveen Kapoor. Later on, it was found that already a case was registered of the same fact in FIR No, 52/2000 and hence, the said present FIR was cancelled. PW-19 deposed that on 09.05.2000, he was posted as Collector South and was also holding the post of Collector, (SW/S) and Dy. Commissioner, Food Supply & Consumer Affairs. On that day, he passed an order to dispose of 11500 liters of blue Kerosene oil, 1300 meter suspected blue Kerosene oil, a tanker, a generator and ejecting pipe. He passed his detail orders for disposal in relation to FIR No.52/00 for the above stated articles. The said detail order Ex.PW-19/A. The said order copy was given to Manku Ram, Jeevan Kumar, G L Khanna through the lo to the FSL circle 07, Najrat Officer and also to the 1O and anti-hoarding cell. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 12.02.2021. Thereafter, statement of the accused persons Babu Lal and Mankur Ram were recorded on 22.09.2021 u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") wherein accused Manku chose to lead DE. | have heard the Ld. APP and Ld, defence counsel and have perused the case file. li WE
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27. The Ld. APP urged that testimonios of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused persons. LEGAL PROVISIONS INVOLVED Before examining the culpability of the accused persons, | find it apposite to briefly discuss the legal provisions involved in the present case. Section 405 IPC provides for the offence of criminal breach of trust. It reads as under:
"405. Criminal breach of trust--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1])--A person, being an employer fof an estab-lishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 12
28. 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to th Fund or Family Pension Fund es e employee for credit to a Provident tablished by any law for the time being in force, shall be deemed fo have been entrusted with the amount of the contribution $0 deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee rance Fund held and urance Corporation 2 Act, 1948 (34 of for credit to the Employees' State Insu admin-istered by the Employees' State ins established under the Employees' State Insurance:
1948), shall be deemed to have been entrusted with the contribution so deducted by him and if he makes defaul payment of such contribution to the said Fund in violation of the the amount of t in the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaia]."
A bare reading of this provisions makes it very clear that if any property is entrusted to any person or that person gets dominion over any property and thereafter dishonestly misappropriates the same or converts it for his own use or uses it contrary to the contract or lawful directions, then that person is said to have committed the offence of criminal breach of trust. Essential ingredients which need 13
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30. to be established by the prosecution in order to prove the offence of criminal breach of trust are as follows:
e Entrustment of the property; and ¢ A dishonest misappropriation or conversion of the property by the person entrusted with the property to his own use; or * Dishonest use or disposal of the property in violation of the mandate of the law prescribing the mode in which the entrustment is to be discharged; or ¢ Dishonest use or disposal of the property in violation of the terms of any legal contract either expressed or implied regarding the discharge of the instrument, or wilfully allowing some other person to do so. Section 407 IPC is the aggravated form of criminal breach of trust. When a person who has been entrusted with the property as a carrier, wharfinger or warehouse keeper, commits criminal breach of trust then he is punished with imprisonment of either description for a term which may extend to 7 years or with fine.
Thus, the two distinct parts of the offence of criminal breach of trust are the creation of an obligation in relation to the property over which dominion or control is with the accused and misappropriation in dealing with the property dishonestly by the accused which is contrary to the terms of the obligation created. A reading of this provision suggests that the gist of the offence is dishonest conversion to one's own use of another's property.14
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33. First and foremost requirement which needs to be established by the prosecution is the "entrustment of property". The property must have been entrusted to a person thereby creating a trust of some kind. The offender must hold the property on trust for some other person or in some way for his benefit. The natural meaning of 'entrusted' involves that the assured, should, by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty. Further, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.
"Dishonest intention" is the essence of this offence. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust. 'Dishonest' is defined in section 24 IPC as wrongful loss and wrongful gain. As per section 23 IPC, 'wrongful gain' means gain by unlawful means of property to which the person gaining is not legally entitled and 'wrongful loss' is the loss by unlawful means of Property to which the person losing it is legally entitled. Misappropriation simpliciter would not be sufficient enough to constitute the offence of criminal breach of trust.
lf should also be noted that dishonest intention on the part of accused is snot required right at the time of entrustment of property. Mere proof of entrustment of property is sufficient for the offence of criminal breach of trust. Dishonest intention 15 Ly
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36. to misappropriate may develop after the time of entrustment of property. Reference can be taken from the decision of the Hon'ble Allahabad High Court in the case of Ashrafi Lal vs. State 1978 CrLJ (NOC) 33 (All).
The burden of proving such dishonest intention is on the prosecution which can be justifiably inferred from the attending circumstances, the conduct of the accused and a false explanation given by him. Moreover, if the entrustment is proved and the accused fails to account for the property when he is accountable or is not able to offer an acceptable explanation for the loss, the onus to establish which is upon him, or offers a false explanation, a criminal intention may readily be inferred. Once the entrustment is admitted, it is for the accused to explain as to how he dealt with the money. If the explanation is not acceptable, then the offence of criminal breach of trust is proved. Where it is the duty of the accused to pay over money at once or any different periods, his non-payment is prima facie evidence that he has wrongfully appropriated it to himself. Reference can be taken from the case of V. Ramashankar Patnaik vs. State of Orissa, (1983) 3 Crimes 526 (Ori) & in Re, Ch. Venkatasubbayya AIR 1956 Mad 452.
Further, section 3 of Essential Commodities Act, 1955 (hereinafter referred asthe "E.C Act") empowers the central government to control the production, supply, and distribution etc. of the essential commodities. It reads as under: 16
"3. Powers to contro! production, supply, distribution, etc., of essential commodities.--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices 12for for securing f india or the efficient any essential commodity for the defence o r, provide for conduct of military operations}, it may, by orde reguiating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide--
(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity,
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-
crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;
(c) for controlling the price at which any essential commodity may be bought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept fer sale;
(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--
(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, 17
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38. to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation 1.--An order made under this clause in relation to foodgrains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers. Explanation 2.--For the purpose of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar,]"
The Central Government by exercising the power vested in it u/s 3 of the E.C Act vide gazette notification no. 300 dated 02.09.1993 had restricted the use, procurement, storage and sale etc. of the kerosene oil supplied under the public distribution system. Section 7 provides penalties for the contravention of any order made by the central government u/s 3 of the E.C Act.
After having discussed the legal provisions involved, | shall now be examining the culpability of the accused persons against the backdrop of the said provisions and the materials available on record. For the sake of convenience, | shall be discussing the culpability of the both the accused persons separately.18
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42. CULPABILITY OF ACCUSED MANKU RAM As discussed in the preceding part of this judgment, as per the case of prosecution, the accused Manku Ram was the driver of tanker carrying blue kerosene oil (which was a restricted commodity under the E.C Act on the date of incident). The said tanker was carrying kerosene oil for several depots and was meant for public distribution. However, the accused Manku Ram was found emptying the said kerosene oil from his tanker unauthorisedly on the date of incident. Hence, he was charged for the offence of criminal breach of trust committed by a carrier punishable u/s 407 IPC and section 7 of Essential Commodities Act. For the sake of convenience, | shall be examining the culpability of the accused Manku Ram for both the offences separately.
Criminal breach of trust As per the case of prosecution, on 20.01 2000, the accused Manku Ram had received 12000 litres of blue kerosene oil in his tanker on behalf of M/s Dheeru Mal Kapoor which was subsequently supposed to be delivered to different kerosene oil depots. Thus, the accused Manku Ram was entrusted with the kerosene oil. As discussed in the preceding part of this judgment, it is incumbent on the prosecution to prove the (i) factum of entrustment of property with the accused in mY the capacity of carrier and (ii) subsequent dishonest misappropriation / conversion / disposal of property in violation of lawful direction / provision.
(i) Entrustment
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46. in order to prove the fact of entrustment of case properly i.e. blue kerosene oil with the accused Manku Ram, the prosecution has examined PW4, PW5, PW6, PWi5 and PW16.
PW15 was the depot manager of the Hindustan Petroleum Corporation Limited situated at Bijwasan Depat, New Delhi. In his testimony, he had categorically stated that on 20.01.2000, 12000 litres of kerosene was delivered to M/s Dheeru Mal Kapoor. He was also examined by the Ld. Defence Counsels and no. material contradictions could be seen in his testimony. PW4, PW5, PW6 and PW16 were the owners of different kerosene oil depots who in their respective testimonies had supported the case of prosecution to the extent of establishing the fact that the kerosene oil was supposed to be delivered to them on 20.01.2020 by the agent M/s Dheerumal Kapoor which they had not received on the said date. They were cross-examined by the Ld. Defence Counsel and no material contradictions could be seen in their respective testimonies. Perusal of the testimonies of above mentioned PWs would show that 12000 litres of kerosene oil was delivered to M/s Dheerumal Kapoor on 20.01.2000 by Hindustan 20 47,
48. Petroleum Corporation Limited and the same was supposed to be delivered to different kerosene oil depots. However, these PWs in their respective testimonies had nowhere stated that it was accused Manku Ram who had received the kerosene oil on behalf of M/s Dheerumal Kapoor. In fact, none of these PWs had mentioned anything about the said accused. Their testimonies would not be suificient enough to establish the fact that accused Manku Ram had received the kerosene oil on the said date on behalf of M/s Dheerumal Kapoor in his tanker. in fact, interestingly, the owner of M/s Dheerumal Kapoor was never examined by the prosecution. His testimony was material in nature in order to establish the factum of entrustment of case property on the accused Manku Ram..Moreover, as per the testimony of PW17, an application u/s 156(3) Cr.P.C which was filed by one person namely Praveen Kapoor was also received by him with direction to register FIR. He had got the FIR bearing no. 165/200 registered for the offence u/s 407 IPC. However, the said FIR was subsequently got cancelled when it was found that the present FIR was already registered. It would appear that the complainant namely Praveen Kapoor was associated with M/s Dheerumal Kapoor in some capacity. However, even he was not examined by the prosecution for reasons best known to them.
The prosecution had also put reliance on the testimonies of PW1 and PW2 to prove the factum of entrustment of case property to the accused Manku Ram. Both of 21
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51. them had categorically stated that they had apprehended the accused Manku Ram with the tanker full of kerosene oil. In the search cum seizure cum measurement cum sampling cum sealing memo Ex. PW1/A certain documents showing delivery of the kerosene oil to M/s Dheerumal Kapoor & Sons were recovered from the accused Manku Ram. This would support the case of prosecution to certain extent that the accused Manku Ram was entrusted with the kerosene oil on the date of incident which he had received on behalf of M/s Dheerumal Kapoor. Be that as it may, it is pertinent to note that the accused Manku Ram has admitted the entrustment of case property i.e. kerosene oil in the statement recorded u/s 313 Cr.P.C and also in his testimony given as DW-1.
Accused Manku Ram | in his statement recorded u/s 313 Cr.P.C had admitted that he had got his tanker filled from HPCL and was carrying the said kerosene oil in his tanker with due bills issued by HPCL. He had further stated that he had left for supplying the kerosene oil as per the schedule given to him. it is a settled proposition of law that while the statement of the accused u/s 313 Cr.P.C. is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Raj Kumar Singh @ Raju @ Batya vs State Of Rajasthan AIR 2013 SC 3150.
22 QO N Similar statement was made by the accused when had had examined himself as DW-1. In his examination-in-chief, he had categorically stated that "on 2 01,2022 at about 11-12 afternoon, | got loaded my tanker with kerosene oil fram HPCL for Ai's_ Dheerumal Kapoor to be distributed to several deposit on invoice" Hence, the iactum of entrustment of kerosene oil had not been disputed by the accused Manku Ram.
Hence, after considering the testimonies of PW1 and PWe2 along with Ex. PW1/A, statement given by the accused Manku Ram u/s 313 Cr.P.C and his testimony as DW-1, lam of the considered view that the prosecution has successfully proved the factum of entrustment of case property i.e. kerosene oil on the part of accused Manku Ram as carrier.
Gib Misappropriation
54. AS per the prosecution, the accused Manku Ram after being entrusted with the kerosene oil i.e. after getting his tanker filled with kerosene oil was supposed to deliver the same to kerosene oil depots. However, he had dishonestly misappropriated / disposed the same partly in violation of lawful directions and expressed/implied contract. In order to prove the factum of misappropriation, the prosecution had primarily relied upon the testimonies of the eyewitnesses i.e. PW and PW2 and also on the testimonies of PW8, PW10, PW14 and PW19. 23
55.
56.
57.
58. PW1 and PW2 are the star witnesses of the present case. They were the officials of Enforcement Branch, Food & Supply Department, New Delhi who had allegedly apprehended the accused Manku Ram red handed at the spot while unloading kerosene oil at the premise of co-accused Babu Lal in an unauthorized manner. Both of them had deposed almost on similar lines. In their respective testimonies, they had supported the case of prosecution to extent of proving that they had found the tanker {full of kerosene oil and the accused Manku Ram near the premise of co- accused Babu Lal. They had also stated that they had found gallons containing kerosene oil measuring around 1300 litres inside the premise of accused Babu Lal. They were duly cross-examined by Ld. Defence Counsels. Perusal of the testimonies of PW1 and PW2 would show that the same suffered from certain material contradictions which would weaken the case of prosecution. Firstly, both of them in their respective testimonies had nowhere explicitly stated that they had seen the accused Manku Ram emptying his tanker or unloading the kerosene oi] inside the premise/godown of the co-accused Babu Lal. They had merely stated that they had found accused Manku Ram with his tanker full of kerosene oil near the premise of co-accused where some gallons containing kerosene oil were also present.
Hence, their testimonies would not be sufficient to conclusively establish that it was accused Manku Ram who was delivering kerosene oil from his tanker in 24 N
58.
60. unauthorised manner to the co-accused Babu Lal. It could also not be conclusively established as to whether the kerosene oil found in the gallons inside the premise of co-accused Babu Lal was the same oil which was being carried by accused Manku Ram in his tanker which was meant for different kerosene oil depots for public distribution.
Secondly, PW1 in his examination-in-chief had stated that the tanker which was found at the spot was full of kerosene oil measuring 11500 litres. Further, another 4300 litre of kerosene oil was found in the godown in different gallons. However, surprisingly when he was cross-examined by Ld. Defence Counsel, he had stated that he could not tell the exact quantity of kerosene oil. He had further stated that there was no measurement instrument at the spot and he had also not carried any instrument. It appears to be a material contradiction in the testimony of PW1. _ the prosecution to prove the facitum .of Another witness examined by misappropriation of PW8, the anti-hoarding cell official who had reached at the spot after receiving the information. in his testimony, he had interalia deposed that when he reached at the spot, he saw that a tanker containing blue kerosene oi! unloaded from the said tanker and stored at the said godown at Telkhand. It should be noted that this statement of PW8 would also be of no help to the prosecution. He did noi depose in his testimony that he had seen the accused Manku Ram unloading blue kerosene olf from his tanker in the godawn of the co-accused Babu Lal. His 25 My
61.
62.
63. testimony would also be relevant only to the extent of proving the presence of accused Manku Ram at the spot with his tanker and the storage of kerosene oil in the godown.
Moreover, it should also be noted that there are certain material contradictions between the testimonies of PW1 and PWS. PW1 in his cross-examination had deposed that he had left the spot at around 11 AM after the arrival of officials of Anti Hoarding Cell. On the other hand, PW8 who was the official of Anti Hoarding Cell had deposed that he remained at the spot till 4 AM and left there along with the officials of Food and Supply Departmenti.e. PW1 and PWe. Another loaphole in the case of prosecution is the non-examination of any public witnesses. It was also highlighted by the Ld. Defence Counsel during the final arguments. Perusali of the materials available on record that no public witnesses were joined as recovery witnesses by the officials. Entry cum search cum seizure cum measurement cum sampling cum sealing memo Ex.PW1/A was prepared by the food inspectors only i.e. PW1 and PWe and not even a single person present at the spot was made witness. Even the officials of anti-hoarding cell were not made witnesses. As per the materials on record, the spot was a thickly populated area. . it is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.PC also casts a statutory duty on an official conducting search to join two respectable persons of the 26 64,
65. asts a doubt on the society. Same has not been done in the present case. This c fairness of the investigation.
From the overall testimony of the witnesses, it appears that no sincere efforts, have been made to join the public persons in the investigation. The witnesses examined by the prosecution are police witness. Not even a single public witness was examined by the prosecution nor joined in the investigation and no plausible reason could be put forward by the prosecution witnesses that for what reason they were unable to gather support from public or independent witnesses to establish the guilt of the accused. Reference can be taken from the decision of the Hon'ble Delhi High Court in the case of Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, In the instant case, as per the testimonies of PWs, the alleged recovery was made from a thickly populated area. Therefore, it could not be said that no public person would have been available at the spot. In fact, even the other officials present at the spot were not made witnesses. lf the public persons were present at the spot, then the police officials should have made endeavor to get them join the investigation. They should have issued notice asking them to join the investigation. On their refusal, necessary action as per law could have been taken against them. ly
66.
67. The failure on the part of the police personnel could only suggest that they were not interested in joining the public persons in the police proceedings. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story. Reference can be taken from the decision of Anoop Joshi Vs. State 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under;
"It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies have to be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At 28 \ this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Homble Apex Court held interajia the following:
"In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police oificials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence _and_is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence. does not in any way affect the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when - it is reliable, trustworthy and preferably corroborated by other evidence on record."
68. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417 wherein it 5 interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search, It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely onthe ground that no 29
69.
70.
71. independent and respectable witness was examined to prove the search but if it is found -as in the oresent case -that no atiemot was_even made by the concerned police officer to join with him some persons of the locality who_were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
As discussed in the preceding paragraphs of this judgment, the officials did not even make any endeavor to join the public witnesses. Further, the prosecution did not even bring on record necessary DD entries to prove arrival and departure of the police officials from the police station. It should be noted that if the police personnels who reached at the spot and has apprehended the accused Manku Ram with kerosene oil, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that they went to the spot after receiving information from PW1 and PW2.
At this stage, reference can be taken from the provision enshrined in 22 rule 49 of 30 he Pre {
72. the Punjab Police Rules, which is reproduced as under;
"Chapter 22 rule 49 Matters to be entered in Register no. I, The following matters shall amongst others, be entered:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, wilh a statement of the nature of their duty.
This entry shall be made immediately on arrival or prior ta the departure of the officer concerned and shall be attested by the latter personally by signature or seal. .
Note:- The term Police Station will include all places such as Police Lines and Police Posts where Register No. {lis maintained. Perusal of the above rule clearly suggests that the police officials are mandated to record their time of arrival and departure on duty at or from the police station. In the instant case, this provision has not been complied by the concerned police witnesses. The relevant entries regarding the arrival and departure of the police officials have not been proved on record. {t has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 the Hon'ble Delhi High Court held that:
"¢ the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with -- and the feast that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution. "
Since all the eye-witnesses are officials (either police officials or officials of Food and Supply department) and the necessary safeguards in the investigation have not been followed by the IO, | am of the view that chances of false implication of accused Manku Ram cannot be ruled out at the instance of the police. 31 we 74, 75,
76. 'ff.
Hence, after considering the testimonies of witnesses and other materials available an record, | am of the considered view that the prosecution has failed to prove the factum of dishonest misappropriation / disposal of case property by the accused Manku Ram in the present case.
Culpability for the offence under E.C Act As discussed in the preceding part of this judgment, the accused Manku Ram was also charged for the offence punishable u/s 7 E.C Act for violating the order passed by the central government whereby the distribution, supply, Sale, storage etc. of the kerosene oil was restricted. The said notification was proved on record by PWS and the same was marked Mark 'A'. In fact, since the said notification no. 300 dated 02.09.1993 was also published in the gazette of India, therefore, a judicial notice can also be taken about the restriction order.
However, as discussed in the preceding part of this judgment, the prosecution. has failed to prove the.factum of dishonest misappropriation / disposal of kerosene oil done by the accused Manku Ram. It could not prove that the accused Manku Ram had indeed unloaded the kerosene oil (which was meant for public distribution) in the godown of the accused Babu Lal on the date of incident. Hence, the accused Manku Ram can also not be convicted for the offence punishable u/s 7 of E.C Act.
32
78.
80.
84. CULPABILITY OF ACCUSED BABU LAL As per the case of prosecution, the godown/premise in which the accused Manku Ram was unloading the kerosene oil (which was a restricted commodity under E.C Act) was owned by the accused Babu Lal. Also, some gallons containing the restricted kerosene oll were recovered from the said godown. Ld. APP had contended that the blue kerosene oil which was recovered from the godown was a restricted commodity u/s 3 of E C Act. The said godown / premise was owned by accused Babu Lal. During the course of investigation, he could not produce any licence or authorization for dealing with restricted kerosene oil. Per contra, Ld. Defence Counsel had contended that the prosecution had not produced any document on record which would show that the accused Babu Lal was the owner of the said premise. Also, the prosecution had failed to conclusively prove that the alleged case properly recovered from the premise was indeed a blue kerosene oil which was a restricted commodity under E C Act. It is pertinent to note that no ownership document of the said premise / godown was filed by the prosecution on record. Hence, it could not be conclusively said that it was accused Babu Lal who was the owner of the said premise. The prosecution has not examined any witness on this aspect.
33
83. 84, Secondly, the identity of accused Babu Lal could also not be conclusively established by the prosecution. It should be noted that accused Babu Lal was not present at the spot when the co-accused Manku Ram was allegedly apprehended by the officials of Food and Supply Department. inspite of the same, PW2 (Official of Food and Supply Department) had correctly identified him during the trial. {t is very difficult to understand as to how PW2 could identify Babu Lal when he was not present at the spot at the relevant time. interestingly, PW2 had not been the part of the investigation after the date of incident. Hence, it could not be the case of prosecution that he could identify accused Babu Lal in the court as he had seen him during the course of investigation.
As per the testimonies of PW1 and PW2 sample of the kerosene oil found in the gallons of godown / premise was taken and handed over to the police official. However, chemical analysis report of the same was never proved on record by the prosecution. Hence, it could not be conclusively said that the kerosene oil allegedly recovered from the spot was actually a restricted commodity under E C Act. Therefore, in view of above discussions and finding, | am of the considered view that while there are grave suspicion against accused persons Manku Ram and Babu Lal for having committed the alleged offences, however, the prosecution could not prove their guilt beyond reasonable doubt. Hence, benefit of doubt has to be extended to the said accused persons.
34
85. Hence, accused Manku Ram stands acquitted for the offence punishable u/s 407 IPC & 3/7 EG Act. Accused Babu Lal stands acquitted for the offence punishable u/s 8/7 EC Act.
Announced in the open court on 08.07.2022 [nimeph Keats 0% 0 (Animesh Kumar) MM-06, South East, New Dethi it is certified that this judgment contains 35 pages and each ven bears my signatures. .
LL (Animesh Kumar) MM-06, South East, New Dethi/08.07.2022 35