Delhi District Court
State vs . Suraj Mal on 31 January, 2017
IN THE COURT OF SH. JITENDRA SINGH: METROPOLITAN MAGISTRATE
(WEST DISTRICT) TIS HAZARI COURTS, DELHI
JUDGEMENT
FIR No. 175/2000
PS: Kirti Nagar U/s. 7/10/55 Essential Commodity Act.
Dated: 31.01.2017.
Case ID: 02401R0172332000
STATE VS. SURAJ MAL
Date of Institution : 26.5.2001
Date of Commission of offence : 07.04.2000
Name of the Complainant : Sh. Sanjay Kumar, Inspector (Enf.
Branch), Food & Supply
Department, KBlock, Vikash
Bhawan, ITO, New Delhi.
Name parentage and address :
of the accused Suraj Mal S/o Sh. Sohan Lal,
R/o;Jhuggi K.H.250, Chunna
Bhatti, Kirti Nagar, New Delhi.
Offence Complained of : U/s. 7/10/55 of Essential
Commodity Act.
Plea of the accused persons : Pleaded not guilty.
Final Order : Acquitted
Date for reserve for order : 31.01.2017
Date of announcing of order : 31.01.2017
FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 1/16
BRIEF FACTS
1. Vide this judgment, I shall dispose off, the above captioned case FIR No. 175/2000, PS: Kirti Nagar. The case of the prosecution as per the complaint of the Complainant is that on 07.04.2000 at about 9.35 am at KH 250, Chunna Bhati, Kirti Nagar, New Delhi, within the jurisdiction of PS Kirti Nagar, accused were found in possession of 885 liters of blue kerosene oil and 490 liters of white kerosene oil without having any licence. and thereby committed offences punishable U/s. 7/10/55 of Essential Commodity Act. The accused persons pleaded not guilty and claimed trial.
PROCEEDINGS AFTER FILING OF CHARGE SHEET
2. On conclusion of the investigation, a charge sheet was filed against accused U/s. 7/10/55 of Essential Commodity Act. Thereafter, a charge Under Section 7/10/55 of Essential Commodity Act was framed against accused on 13.09.2010, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. The prosecution has examined six witnesses in all in the present case.
The deposition of witnesses is touched upon in brief as under to have a better appreciation of the case, which are follows:
PW1 is ASI Rajender Singh, who had deposed that on 07.04.2000, he was posted as Duty Officer at PS Kirti Nagar and on that day his duty hours were from 5.00 pm to 1 am night and at about 5.30 pm, SHO Inspector Harpal Singh gave a complaint SHO marked complaint to Sh. Sanjay Kumar to him with direction to lodge the FIR on said complaint and he made the endorsement of DD No. 12A , bearing his signatures at point A. He deposed that said endorsement is Ex. PW1/A. He further FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 2/16 deposed that on the basis of said endorsement he lodged the FIR No. 175/00, Ex. PW1/B, bearing his signature at point A. Thereafter, SHO marked the investigation of the case to IO/SI Vandana Rao. The witness was not cross examined on behalf of the counsel for the defence.
PW2 is Sh. Sanjay Kumar, Assistant Value Added Tax Officer, who stated on oath that on 07.04.2000, he was posted as Inspector (Enforcement Branch), Food & Supply Department, New Delhi. He deposed that on that day, on receipt of secret information, he alongwith Inspector J.S. Rathi visited the business premises at KH250, Chunna Bhati, Kirti Nagar, at about 9.35 am, where the fire kerosene oil depot was functioning run by accused Suraj Mal. He further deposed that they gave their interrogation to accused Suraj Mal, who was present at the said premises at that time and checked the stock of blue kerosene oil meant for PDS in Delhi and white kerosene oil which the accused had kept in the premises after change from blue to white kerosene oil for the purpose of selling. He further deposed that they also demanded the relevant papers/license to show the details of kerosene oil blue and white lying in his premises but accused failed to produce any such license or documents. He further deposed that in the said premises they found two drums which were full of blue kerosene oil, containing 220 liters each, three plastic canes containing of blue kerosene oil 35 liters each, two drums loose containing blue kerosene oil of 180 liters and 160 liters. He further deposed that two more drums containing 220 liters white kerosene oil suspectedly converted from blue to white oil and 50 liter white kerosene oil were also recovered from the half drum. He further deposed that he seized the total recovered blue and white kerosene, total 1375 liter after keeping out three sample each of 750 ml bottle from blue and white kerosene oil. He FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 3/16 further deposed that all the six samp0le bottles of containing kerosene oil were duly sealed with the seal of CFS, Delhi. He further deposed that the recovered blue and white kerosene alongwith samples were taken into possession through seizure memo Ex. PW2/A which bears his signature at point X. He further deposed that the whole remaining white and blue kerosene were handed over on superdari to Sh. A.K. Arora, Salesman of M/s. Arora Stores, KOD License No. 761/73, functioning at G75A, Kirti Nagar, New Delhi with the direction not to use, sale or destroy the same without the prior permission of competent authority. Superdarinama in this regard was also prepared, the same is Ex. PW2/B which also bears his signature at point X. The statement of accused Suraj Mal was also recorded. The same is Mark A. He further deposed that he made a written complaint to the police in this regard. The same is Ex. PW2/C, which bears his signature at point X. He further deposed that copy of notification dated 05.12.1962 issued from Delhi Administration Delhi was also handed over to the police alongwith the complaint, the same is Mark X. He also handed over the abovesaid prepared documents i.e. entrycum search, superdarinama and statement of accused which were seized by the IO through seizure memo Ex. PW2/B, which also bears his signature at point X. He further deposed that IO inspected the spot and prepared site plan and also recorded his statement.
The witness was cross examined on behalf of the counsel for the defence. PW3 Sh. J.S. Rathi, who stated on oath that on 07.04.2000, he was posted at Enforcement Branch, Food & Supply Department Government of NCT of Delhi as Inspector and on that day on receipt of secret information, he alongwith Inspector Sanjay Kumar visited the premises No. Khasra No. 250, Chuna Bhatti, Kirti Nagar, at about 9.30 am, where free sale of kerosene Oil Depot was functioning and the same was FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 4/16 running by accused Suraj Mal, he introduced himself being the owner of the said Kerosene Oil Depot. He deposed that after given their introduction, in the presence of the accused, they searched the said premises and found total 885 liter Kerosene Oil in total four drums and three canes and 490 liter in two full drums and one half drum suspected blue kerosene oil converted into white kerosene oil. They asked from accused Suraj Mal to show any license issued from any Government Agency or Private Agency, but accused failed to show any such license. He further deposed that the accused has made a statement in this regard and the same is Mark Z. They separated three samples approximately 750 ml each in glass bottles from blue and white kerosene oil and the samples were duly sealed with the seal of CFS Delhi and seizure memo in this regard was prepared. The same is Ex. PW2/A, which bears his signature at point Y. He further deposed that one Kerosene Oil License holder of the department was called at the spot and the entire quantity of seized Kerosene Oil Except samples were handed over to him on superdari vide superdarinama vide Ex. PW2/B with the direction to produce the same before the court or the competent authority as and when required. He further deposed that since the accused had violated the provisions of Delhi Kerosene Oil Export and Price Control Order 1962, due for keeping or excess of quantity of more than 22 liters in his possession without any permit or license. On the request of Inspector Sanjay the present case was registered at PS Kirti Nagar. He further deposed that he also joined the investigation of this case and IO recorded his statement on 07.04.2000. The witness was not cross examined on behalf of the counsel for the defence.
PW4 Inspector Joginder Prasad, who stated on oath that on 28.04.2000, he was posted at PS Kirti Nagar as SI and the investigation of this case FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 5/16 was marked to him by the SHO for further investigation. On his instruction the samples of this case were taken to FSL Hyderabad by Ct. V. Ramu. He deposed that after obtaining from MHC (M), vide RC No. 184/21, dated 27.12.2000 and after depositing the same he handed over the receipt to MHC (M) on 01.01.2001. He recorded the statement of both the witnesses in this regard. The FSL report was not received at that time and challan of this case was sent to this court through SHO. He collected the FSL report through proper channel and the same is now place on record.
The witness was not cross examined on behalf of the counsel for the defence.
PW5 Ct. Narender, who stated on oath that on 07.04.2000, he was posted at PS Kirti Nagar as Ct. On that day, he had joined the investigation with the IO SI Vandana Rao. On that day, two samples bottles were seized which were handed over to the IO by Sh. J.S. Rathi of Enforcement Branch, Food and Supply Department, which were also recovered from the accused Suraj Mal, vide seizure memo which is Ex. PW2/B, bearing his signature at point B. The accused was arrested and his arrest memo was prepared which is Ex. PW5/A, bearing his signature at point B. He deposed that personal search of the accused was also conducted vide personal search memo Ex. PW5/B, bearing his signature at point B. The witness was not cross examined on behalf of the counsel for the defence.
PW6 Retd. ASI Surat Singh, who stated on oath that on 07.04.2000, he was posted PS Kirti Nagar as MHC (M). On that day, W/SI Vandna Rao deposited the duly sealed case property of this case alonwith the relevant documents in the malkhana of PS Kirti Nagar through him, vide serial no.
FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 6/16 1180 at page no. 75 of register no. 19. The photocpy of the same is Ex. PW6/A. He deposed that so far as the case property was remained in his possession. It has not been tempered with in any way. The witness was not cross examined on behalf of the counsel for the defence.
STATEMENT OF ACCUSED UNDER SECTION 313 OF CR.P.C.
4. Thereafter, PE was closed. Statement U/s. 313 Cr.PC of the accused persons were recorded, wherein he stated that he does not want to lead his defence evidence. Thereafter, DE stands closed. Final arguments have been heard from both the sides and record has been meticulously perused.
5. I have weighed the rival submissions made on behalf of the State as well as on behalf of the defence in the light of the testimonies & material appearing on record.
6. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
7. It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 7/16
8. I have heard the contention of Ld. APP for State as well as Ld. Defence counsel and given my thoughtful consideration. It is submitted by Ld. APP for the State that the witnesses examined by the prosecution have unerringly stated against the accused and it was found by the recovery witnesses that the records of the said shop was not maintained by the accused and the quantity was found in possession of 885 liters of blue kerosene oil and 490 liters of white kerosene oil without having any licence, therefore, in this context the presumption under Section 10 ( c) of Essential Commodity Act is attracted against the accused. Further, Ld. APP for the Sate submitted that the ratio of the judgment of State of MP Vs. Narayan Singh, 1989, 3SCC 596 is applicable in this case. Hence, the case is proved against the accused beyond reasonable doubt and the accused is liable to be convicted.
APPRECIATION OF EVIDENCE
9. To prove the present offence, the Prosecution has examined six witnesses in all. To Prove the ingredients of offences, the Prosecution was required to prove that the accused was found in possession of 885 liters of blue kerosene oil and 490 liters of white kerosene oil without having any licence. In the aforesaid factual & legal background, I shall now step forward to adjudicate as to whether the prosecution has succeeded in proving its case against the accused or not.
10. The case of the prosecution, as seems to me in the nutshell, is that the accused was found in possession of 885 liters of blue kerosene oil and 490 liters of white kerosene oil without having any licence.
11. The prosecution had examined the complainant Sh. Sanjay Kumar (PW
2), Assistant Value Added Tax Officer, who stated on oath that on 07.04.2000, he was posted as Inspector (Enforcement Branch), Food & FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 8/16 Supply Department, New Delhi. He deposed that on that day, on receipt of secret information, he alongwith Inspector J.S. Rathi visited the business premises at KH250, Chunna Bhati, Kirti Nagar, at about 9.35 am, where the fire kerosene oil depot was functioning run by accused Suraj Mal. He further deposed that they gave their interrogation to accused Suraj Mal, who was present at the said premises at that time and checked the stock of blue kerosene oil meant for PDS in Delhi and white kerosene oil which the accused had kept in the premises after change from blue to white kerosene oil for the purpose of selling. He further deposed that they also demanded the relevant papers/license to show the details of kerosene oil blue and white lying in his premises but accused failed to produce any such license or documents. He further deposed that in the said premises they found two drums which were full of blue kerosene oil, containing 220 liters each, three plastic canes containing of blue kerosene oil 35 liters each, two drums loose containing blue kerosene oil of 180 liters and 160 liters. He further deposed that two more drums containing 220 liters white kerosene oil suspectedly converted from blue to white oil and 50 liter white kerosene oil were also recovered from the half drum. He further deposed that he seized the total recovered blue and white kerosene, total 1375 liter after keeping out three sample each of 750 ml bottle from blue and white kerosene oil. He further deposed that all the six samp0le bottles of containing kerosene oil were duly sealed with the seal of CFS, Delhi. He further deposed that the recovered blue and white kerosene alongwith samples were taken into possession through seizure memo Ex. PW2/A which bears his signature at point X. He further deposed that the whole remaining white and blue kerosene were handed over on superdari to Sh. A.K. Arora, Salesman of M/s. Arora Stores, KOD License No. 761/73, functioning at G75A, Kirti FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 9/16 Nagar, New Delhi with the direction not to use, sale or destroy the same without the prior permission of competent authority. Superdarinama in this regard was also prepared, the same is Ex. PW2/B which also bears his signature at point X. The statement of accused Suraj Mal was also recorded. The same is Mark A. He further deposed that he made a written complaint to the police in this regard. The same is Ex. PW2/C, which bears his signature at point X. He further deposed that copy of notification dated 05.12.1962 issued from Delhi Administration Delhi was also handed over to the police alongwith the complaint, the same is Mark X. He also handed over the abovesaid prepared documents i.e. entrycum search, superdarinama and statement of accused which were seized by the IO through seizure memo Ex. PW2/B, which also bears his signature at point X. He further deposed that IO inspected the spot and prepared site plan and also recorded his statement.
12. PW3 Sh. J.S. Rathi, who stated on oath that on 07.04.2000, he was posted at Enforcement Branch, Food & Supply Department Government of NCT of Delhi as Inspector and on that day on receipt of secret information, he alongwith Inspector Sanjay Kumar visited the premises No. Khasra No. 250, Chuna Bhatti, Kirti Nagar, at about 9.30 am, where free sale of kerosene Oil Depot was functioning and the same was running by accused Suraj Mal, he introduced himself being the owner of the said Kerosene Oil Depot. He deposed that after given their introduction, in the presence of the accused, they searched the said premises and found total 885 liter Kerosene Oil in total four drums and three canes and 490 liter in two full drums and one half drum suspected blue kerosene oil converted into white kerosene oil. They asked from accused Suraj Mal to show any license issued from any Government Agency or Private Agency, but accused failed to show any such license.
FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 10/16 He further deposed that the accused has made a statement in this regard and the same is Mark Z. They separated three samples approximately 750 ml each in glass bottles from blue and white kerosene oil and the samples were duly sealed with the seal of CFS Delhi and seizure memo in this regard was prepared. The same is Ex. PW2/A, which bears his signature at point Y. He further deposed that one Kerosene Oil License holder of the department was called at the spot and the entire quantity of seized Kerosene Oil Except samples were handed over to him on superdari vide superdarinama vide Ex. PW2/B with the direction to produce the same before the court or the competent authority as and when required. He further deposed that since the accused had violated the provisions of Delhi Kerosene Oil Export and Price Control Order 1962, due for keeping or excess of quantity of more than 22 liters in his possession without any permit or license. On the request of Inspector Sanjay the present case was registered at PS Kirti Nagar. He further deposed that he also joined the investigation of this case and IO recorded his statement on 07.04.2000.
13. PW4 Inspector Joginder Prasad, who stated on oath that on 28.04.2000, he was posted at PS Kirti Nagar as SI and the investigation of this case was marked to him by the SHO for further investigation. On his instruction the samples of this case were taken to FSL Hyderabad by Ct. V. Ramu. He deposed that after obtaining from MHC (M), vide RC No. 184/21, dated 27.12.2000 and after depositing the same he handed over the receipt to MHC (M) on 01.01.2001. He recorded the statement of both the witnesses in this regard. The FSL report was not received at that time and challan of this case was sent to this court through SHO. He collected the FSL report through proper channel and the same is now place on record.
PW5 Ct. Narender, who stated on oath that on 07.04.2000, he was FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 11/16 posted at PS Kirti Nagar as Ct. On that day, he had joined the investigation with the IO SI Vandana Rao. On that day, two samples bottles were seized which were handed over to the IO by Sh. J.S. Rathi of Enforcement Branch, Food and Supply Department, which were also recovered from the accused Suraj Mal, vide seizure memo which is Ex. PW2/B, bearing his signature at point B. The accused was arrested and his arrest memo was prepared which is Ex. PW5/A, bearing his signature at point B. He deposed that personal search of the accused was also conducted vide personal search memo Ex. PW5/B, bearing his signature at point B.
14. It appears from the testimonies of PW4 and PW5 that the IO made no efforts whatsoever to join public witnesses, when the said investigation was conducted. From the aforementioned circumstances, it is clear that the place was a public place and despite that IO did not made any sincere effort whatsoever to join the public witnesses during the time of investigation headed by them, which if would have done might have added strength to the tainted proceedings.
15. The case of the prosecution is based upon the recovery of kerosene oil from the possession of the accused without licence. In such cases at the time of inspection non joining of public witnesses cast serious doubt to the case of the prosecution.
16. In circumstances like the present one, the IO should have made an effort to join public witnesses during the investigation proceedings and if members of the public would have refused to assist the members of the police party, they could have served the said passerby/public witnesses with a notice in writing to join the police proceedings either at the time of the investigation, when the accused was already apprehended, since after the apprehension of the accused, there was no possibility of accused FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 12/16 escaping his arrest or his crime going undetected. At least in these facts and circumstances of the case, in my opinion, the police officials concerned must have asked the passersby/public persons available at the spot of the recovery by serving them a notice in writing and further in case of their refusal, the concerned police people must have taken action against them under Section 187 IPC. Facts and circumstances of the case suggests that no sincere efforts were made by police officials concerned to join independent public witnesses in the concerned police proceedings at any of the available stages. In this regard reliance is being placed on the following judgments: In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under: "18. It is repeatedly laid down by this Court 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 evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers 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". In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under: "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 13/16 they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for nonjoining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
17. In case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court had observed as under: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
18. It is also apparent from the file that the superdar of the case property has already been expired and he did not depose regarding the handing over the case property to him by the recovery witnesses and the case property also not duly identified due to the non examination of the Superdar namely Sh. A.K. Arora due to his demise. The identity of the case property is not duly proved by the prosecution. The production of alleged kerosene oil so removed or seized from premises was a necessary requirement which the prosecution has failed to produce in the court. The accused is therefore entitled for benefit of doubt.
19. As per section 14 of The Essential Commodities Act, 1955, the burden of FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 14/16 proof lies on the person who is prosecuted for contravening any order made under section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the burden of proving that he was such authority, permit, licence or other document shall be on him. However, the onus to discharge this burden shall shift on the accused only when prosecution is able to prove on record the alleged recovery of prohibited commodity. It is the cardinal principle of jurisprudence as administered in this county that it is for the prosecution and prosecution alone to prove all the ingredients of the offence with which the accused has been charged. The accused is not bound to open his lips or enter upon his defence until and unless the prosecution has discharged the burden which lies upon it and satisfactory proved the guilt of the accused. The onus of proving all the ingredients of the offence is always upon the prosecution and at no stage does it shift to the accused. The prosecution must stand or fall on its own legs and cannot derive any strength from the weakness of the defence.
20. Being guided by abovesaid case law, the possibility of false implication of the accused in the instant case by the police party against accused can not be ruled out beyond doubt, which makes the story of prosecution qua the incident. I deem it fit to observe that the aforementioned omission on behalf of the prosecution to prove & place on record the relevant call records and explain the contradictions appearing from the testimonies of Pws..
DECISION
21. The aforementioned contradictions, omissions and lacunas clearly shows that the prosecution has been unable to prove the recovery alleged against the accused beyond reasonable doubt, whereby the accused has become entitled to the benefit of doubt. Accordingly, I accord the benefit FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 15/16 of doubt to the accused , whereby the accused is acquitted of the charges levelled against him.
Announced in the open court today itself i.e. 31.01.2017.
(JITENDRA SINGH) METROPLITAN MAZISTRATE TIS HAZARI COURTS, DELHI FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 16/16 FIR No. 175/00, PS Kirti Nagar, State Vs. Suraj Mal 17/16