Delhi District Court
Fir No.219/01 Ps Anand Parbat State vs . Birender Kumar Gupta on 3 August, 2013
FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta
IN THE COURT OF SHRI PULASTYA PRAMACHALA
ADDL. CHIEF METROPOLITAN MAGISTRATE, WEST
TIS HAZARI COURTS, DELHI
F.I.R. No.219/01
Police Station: Anand Parbat
Under Section 7/10/55 E.C Act
(a) Case ID number : 02401R6048222004
(b) Date of commission of the : 23/07/2001
offence
(c) The name of the complainant : Inspector Lalit Jain,
Enforcement Branch, Food &
Supplies, GNCT, Vikas
Bhawan,ITO, Delihi
(d) The name of the accused : Birender Kumer Gupta,
persons, their parentage and s/o.Sh. Rajpal Gupta, R/o.689,
residence Baba Farid Puri, Anand
Parbat, New Delhi
(e) The offence complained of : Under Section 7/10/55 of E.C
Act.
(f ) The plea of the accused : Pleaded not guilty and
claimed trial.
(g) The final order : Acquitted
(h) Final argument concluded on : 26/07/2013
(I) Judgment passed on : 02/08/13
(PULASTYA PRAMACHALA)
Addl. Chief Metropolitan Magistrate
West District, Tis Hazari Courts:Delhi
Page no.7 of 7
FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta
JUDGMENT
CASE SET UP BY THE PROSECUTION: 1 On 23.07.2001, a team of officers from Enforcement Department, Food & Supply Department, Delhi conducted a raid in the business premises of the accused i.e at M/s. Kalu Store, 738, Baba Faridpuri, Anand Parbat, Delhi. In this raid, they found accused to be in possession of 12 canes of blue kerosene oil, each having capacity of 35 liters and another 5 canes of white kerosene oil, each having capacity of 35 liters. They seized all the canes on the ground of violation of Delhi Kerosene Oil(Export and Supply Order)1962. An information of such recovery was given by way of complaint of complainant Sh. Lalit Jain, on the basis of which present FIR was registered. After completion of the investigation, chargesheet was filed in the court on 18.03.04. Charges were framed against the accused for offence u/s.7 of Essential Commodities Act,1955, on 08.11.2005, to which he pleaded not guilty.
2 Prosecution examined 8 witnesses in support of its case. Thereafter statement of accused was recorded u/s.313 Cr.PC on 10.07.2013.
Plea of Accused 3 Ld defence counsel argued that accused was falsely implicated in this case in as much as accused was not in possession of blue kerosene oil. It was further argued that Delhi Kerosene Oil (Export (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 7 FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta and Price Control)Order, 1962 was overridden by another order passed by Central Government on 02.09.1993 with title of Registration of Use and Fixation of Selling Price Order, 1993. It was further argued that the order of 1993 allowed parallel marketing and therefore mere possession of kerosene oil is no more violation of Essential Commodities Act. It was also argued that prosecution did not prove the FSL report, therefore there is no material on the record to show that the substance allegedly recovered from accused was kerosene oil. He also argued that case property was never produced in the court and the recovery proceeding is doubtful because kerosene oil was handed over to another licensee of Food & Supply Department without explaining the relevant provisions.
Findings 4 In this case, PW1 Inspector Jitender Kumar, PW2 Inspector Lalit Jain, Sh. R.K Meena PW4, and PW7 Sh. A.K. Sajnani were the members of the raiding team, who conducted the raid at the premises of the accused. PW1 deposed that on 23.07.2001, on receipt of secret information in the Enforcement Branch, he along with Inspector Lalit, Inspector A.K. Sajnani and Inspector R.K. Meena visited the premises of M/s. Kalu Store at 738, Baba Faridpuri, Anand Parbat. At that premises, they contacted Mr. Raj Kumar, who informed them that premises belongs to the accused. After introducing themselves they searched the said business premises in the presence of the accused and found 12 canes of blue kerosene oil and 5 canes of white kerosene oil, each cane having capacity of 35 liters. On their demand, accused could not produce any (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 7 FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta license, authorisation letter or other relevant document for keeping the above said kerosene oil. 3 samples from both types of kerosene oil were taken and remaining kerosene oil was seized and handed over to one Sh. Om Prakash Ahuja, who was licensee of the Department. Thereafter, investigation was handed over to S.I Satish Kumar of AntiHoarding Cell of GNCT, Delhi. In his crossexamination, he deposed that the shop of accused was situated in a residential locality and public persons were also present there, but they had not made any request to the public persons to join the proceedings at any stage. He further deposed that the samples were taken in 3 silver containers, which were taken by them from their office at the time of leaving for raid. He further deposed that he had not gone to the shop of M/s. Om prakash Ahuja and one of his associates in the raiding team might have visited his shop. He also deposed that team had taken permission from the department in writing for handing over the goods on superdari.
5 PW2 also deposed that on same line, however, he did not mention the name of Mr. Raj Kumar, who as per PW1 informed the team about the accused. In his crossexamination, he deposed that public persons were asked to join the raid by them, but they refused. He further deposed that the samples were taken in aluminum container. He further deposed that no written permission was obtained for handing over the goods on superdari. In respect of Sh. Om Prakash, Superdar, he deposed that he was called at the spot and none of the members of the team had visited his shop. PW4 also deposed on the same lines without mentioning (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 7 FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta the name of Raj Kumar. In his crossexamination, he deposed that though public persons were present around the shop, but none was asked to join the proceedings. PW7 also deposed on the same lines without mentioning the name of Raj Kumar. In his crossexamination, he deposed that no public person was joined in the raid, though many public persons were present there. He further deposed that no identification mark was given to seized canes.
6 PW3 was the Superdar, who deposed that on 23.07.01, officers of Food & Supply Department handed him over 17 canes of 35 liters each, filled with kerosene oil. He further deposed that he had produced the said plastic canes, which were empty as kerosene oil had evaporated. In his crossexamination, he deposed that no special identification marks were given on the said canes and no seal was affixed on the same.
7 PW5 had visited the spot along with S.I Satish Kumar and had taken the complaint to P.S for registration of FIR. S.I Satish Kumar was the I.O, who prepared the seizure memo of the samples and arrested the accused. PW6 was MHC(M) who had received 2 samples of kerosene oil from S.I Satish Kumar on 23.07.2001. PW8 had taken the samples to CFSL, Hyderabad.
8 From the careful scrutiny of the above mentioned evidence, I find that the members of raiding team have given contradictory statement regarding any attempt made by them to join independent public person in the raid. The contrary statement shows that some of them had been making artificial statement regarding raid proceedings. It (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 7 FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta is admitted fact, though, that public persons were present at the spot. Apparently no public person was joined, which caste doubt over the intentions of the raiding team.
9 This shows that despite public witness being available, they were not joined to ensure the authenticity of all proceedings. In Sadhu Singh v. State of Punjab, 1997 (3) Crimes 55, it was held that "Prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereo type statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness. This reflects adversely on the prosecution version."
10 I also find contradiction in respect of any permission taken from the department to hand over the recovered kerosene oil on superdari to Mr. Om Prakash Ahuja. Apparently, no written permission has been placed on record, but PW1 claimed that such permission was obtained and was handed over to officer of AntiHoarding Cell. Such contradiction again caste doubt over the proceedings conducted by this team. Such scenario gets further worsened with the fact that the case property was admittedly not sealed by raiding team nor any specific mark was given to the canes. When these canes were produced before the court during examination of PW1, PW2 & PW3, they were found empty. PW3/Superdar gave explanation that kerosene oil had evaporated. However, I am unable to accept this explanation because the members of raiding team as well as Superdar are assumed to know the measures to be taken to stop (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 7 FIR No.219/01 PS Anand Parbat State Vs. Birender Kumar Gupta evaporation of kerosene oil from a container. The members of raiding team were working in Food & Supply Department and they must be having some basic knowledge. Therefore, at the time of seizure of such kerosene oil, they were bound to take such measures to ensure that kerosene oil remained intact in the container. PW3 was the licensee, who used to deal with sale and purchase of kerosene oil under a license given by the Department. Therefore, similar expectation is from him as well. Production of empty canes gives a fatal blow to the case of prosecution regarding recovery of 17 canes comprising of blue and white kerosene oil. Furthermore, admittedly the canes were neither sealed nor any identification mark was given. This omission makes the recovery proceedings unreliable.
11 As per the prosecution witnesses, no one was authorized to keep more than 22 liters of blue kerosene oil without license. However, since recovery of such blue kerosene oil has not been established beyond doubt, therefore, there is no question to raise presumption of guilt of accused for the alleged offence.
12 In view of aforesaid findings and observations, accused Birender Gupta is acquitted of the charges under Section 7/10/55 of Essential Commodities Act.
Judgment dictated and (PULASTYA PRAMACHALA) pronounced in the open Court Addl. Chief Metropolitan Magistrate
On this 2nd day of August, 2013. West District, Tis Hazari Courts:Delhi (This judgment consists of seven pages) (PULASTYA PRAMACHALA) Addl. Chief Metropolitan Magistrate West District, Tis Hazari Courts:Delhi Page no.7 of 7