Delhi District Court
State vs . Som Nath on 29 April, 2013
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IN THE COURT OF SH. SHARAD GUPTA
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI.
STATE Vs. Som Nath
P.S.: Bindapur
U/s: 7/10/55 EC Act
JUDGMENT
(a) The FIR No. of the case : 189/08
(b) The date of commission of : 21.7.08
offence
(c) The name of complainant : Inspector Sukhbir Singh Circle
No. 12 Food and Supply
Department, 153 Community
Centre Janak Puri, Delhi
(d) The name, parentage etc. of : Som Nath s/o Sh. Ved Prakash
accused R/o A 290, JJ Colony, Pankha
Road, Uttam Nagar, Delhi
(e) The offence complained of/ : U/s 7/10/55 Essential
proved Commodities Act.
(f) The plea of accused : Pleaded not guilty
(g) The date of institution : 22.12.2008
(h) The final order : Convicted
FIR No : 189/08 St. Vs. Som Nath Page 1 of 14
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(i) The date on which order was : 29.04.2013
reserved
(j) The date of such order : 29.04.2013
k) Brief statement of the reasons
for the decision
1. The accused Som Nath is facing trial on the allegations that on 21.7.08 at about 6 p.m at A 290, JJ Colony, Pankha Road , Uttam Nagar, New Delhi he being licence holder of fair price shop was found to be having number of irregularities regarding stock of rice and wheat issued to him for the said purpose by concerned department on checking by officials of food and Supply department and thereby he violated provisions of Delhi Specified Articles control order 1981 and PDS control order 2001 issued u/s 3 of essential commodities Act. For the said offence FIR no. 189/08 u/s 7/10/55 of Essential Commodities Act, 1955 was registered and charge sheet was filed in court after usual investigation.
2. After supply of copies to the accused in compliance of section 207 Cr PC, from the material the accused was charged for the offence U/s 7/10/55 of EC Act, 1955 vide order dated 8.10.2010, to which he pleaded not guilty and claimed trial.
FIR No : 189/08 St. Vs. Som Nath Page 2 of 14
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3. To support its case the prosecution has examined as many as eleven witnesses. PW 1 Inspector Sukhbir Singh from Food and supply department is the complainant. PW2 Sh. V B Rai went to the fair price shop of accused alongwith PW1 Inspector Sukhbir Singh and in his presence a number of irregularities were found in the record. PW3 Constable Gulbir Singh is a formal witness in nature who only handed over copy of FIR to PW11 SI SP Singh, IO of this case. PW4 R. K Sharma , head clerk from policy branch of Food and Supply Department proved the copy of PDS (control) Order as Ex.PW4/A. PW5 Sh.Vijay Khanna, was the then Asstt. Commissioner from F& S department on whose direction, PW1 Inspector Sukhbir Singh and PW2 Sh. V B Rai went to the shop of accused for making physical verification of the specified food articles lying at the said FPS. PW6 Sh. Subhash Chand was public witness in whose presence, accused was arrested and personally searched. PW7 Raj Kumar and PW8 Arun Kumar are ration card holders who used to take ration from the shop of accused. PW9 H C Karan Singh was the MHCM of P S Binda Pur. PW10 SI Shanti Prakash proved copy of FIR AS PW10/A being duty officer in P S Binda pur on 1.08.2010 and PW11 SI S.P Singh is the IO of this case. Thereafter, PE was closed.
FIR No : 189/08 St. Vs. Som Nath Page 3 of 14
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4. The version of the prosecution as adduced in its evidence is that on 21.7.2008 PW1 Inspector Sukhbir Singh and PW2 Sh.V B Rai FSO Circle 12 alongwith other officials visited the fair price shop of accused vide licence no. 3010 functioning at A 2 90 JJ Colony, Pankha Road being run in the name and style of M/S Ved Prakash Som Nath. At around 6 p.m they found the said shop open and the accused met them. On checking, a number of irregularities were found in the record maintained by the accused and the record did not telly with the physical stock, rice 12.70 quintals was found excess on physical verification and 2.77 q. wheat was found short. Stock board was not filled during the visit. The irregularities were found in the record as well as physical verification shows that the accused used the stock in black marketing and violated the provision of licnece issued to him by FSO department. PW1 prepared weighment cum recovery memo Ex. PW1/A. The accused gave a written statement in his own handwriting admitting the irregularities vide Ex. PW1/B. Approval of commissioner food and supply was taken vide memo Ex. PW1/C. PW1 complainant made complaint Ex. PW1/D to PW11 SI SP Singh, Incharge anti hoarding cell on 1.08.08. The complaint and relevant documents were seized by the IO /PW11 SI S.PSingh vide Ex. PW1/E. PW1 complainant also handed over three stock registers, four sale registers and 9 cash book memos to the IO PW11 which were seized vide Ex. PW1/F. Variation statements prepared after FIR No : 189/08 St. Vs. Som Nath Page 4 of 14 : 5 : checking the record was prepared by PW1 vide Ex. PW1/G. Pullanda has been proved as Ex.P1. APL, BPL and AAY stock registers have been proved as Ex. P2 to Ex.P4. 5 APL cash Memos have been proved as Ex. P5 to Ex.P9. BPL cash memo has been proved as Ex. P10. AAY cash memo has been proved as Ex. P11. APL, BPL and AAY daily sale register has been proved as Ex. P12 to Ex.P14. During course of trial PW4 RK Sharma has proved attested copy of PDS control order vide Ex. PW4/A and attested copy of Delhi Specified articles regulation of distribution order 1981 as Ex.PW4/B while attested copy of Delhi Specified articles regulation of distribution Amendment order has been proved as Ex. PW4/C. PW5 Vijay Khanna AC /West FSD had directed PW1 and PW2 to visit the shop of accused and to check his record of his FPS. Thereafter, they presented approval report Ex.PW1/C giving a total net variation of 15.47 qunital of wheat and rice which was marked by PW5 to JC West for approval. On 01.08.08 PW11 SI SP Singh received complaint already Ex.PW1/D alongwith relevant documents and case property on the basis of which he prepared tehrir Ex. PW11/A and got the FIR registered through PW10 SI Shanti Prakash vide Ex. Pw10/A. PW11 visited the spot with PW1 and prepared site plan Ex. PW11/B. PW3 Ct. Gulbir handed over copy of FIR and original rukka to PW11 at the spot on 4.8.2008 the accused was arrested in presence of pw6 Subhash Chand vide memo Ex. PW6/A and was personally searched vide memo Ex. FIR No : 189/08 St. Vs. Som Nath Page 5 of 14
: 6 : PW6/B. His disclosure statement Ex. PW6/C was recorded. After completion of investigation chargesheet was filed against the accused in court.
5. During the course of trial PW 7 Raj Kumar and PW 8 Arun Kumar did not support the version of the prosecution and were declared hostile. Both the PW s stated that the accused provided ration to them regularly and did not misbehave with them. The prosecution witnesses were cross examined by Ld APP for the state but they even denied having made statements u/s 161 CrPC to the IO of the case and did not support the version of the prosecution.
6. Prosecution evidence was closed after all the prosecution witnesses had been examined. Accused was examined U/s 281/313 CrPC and all the incriminating evidence coming on record was put to the accused. The accused submitted that he is innocent and has been falsely implicated in this case. The accused chose to lead DE but he could not lead DE and DE was closed vide order dt. 30.1.2013 and the matter was posted for final arguments.
7. I have heard the Ld. APP for State and Ld Counsel for the accused and have perused the material on record. In the present case, the prosecution was required to prove beyond reasonable doubt that on 21.7.08 at about 6 p.m at A 290, JJ FIR No : 189/08 St. Vs. Som Nath Page 6 of 14 : 7 : Colony, Pankha Road , Uttam Nagar, New Delhi the accused being licence holder of fair price shop was found to be having number of irregularities regarding stock of rice and wheat issued to him for the said purpose by concerned department on checking by officials of food and Supply department and thereby he violated provisions of Delhi Specified Articles control order 1981 and PDS control order 2001 issued u/s 3 of essential commodities Act. The first ingredient the prosecution was required to prove was the control orders which had been violated. In this regard prosecution has examined PW4 RK Sharma who has proved attested copy of PDS control order vide Ex. PW4/A and attested copy of Delhi Specified articles regulation of distribution order 1981 as Ex.PW4/B while attested copy of Delhi Specified articles regulation of distribution Amendment order has been proved as Ex. PW4/C. The prosecution has thus duly proved the relevant control orders issued under section 3 of the Essential Commodities Act on record.
8. To establish its version that the accused was acting in violation of the said orders, the prosecution has interalia examined PW1 Inspector Sukhbir Singh and PW2 Sh.V B Rai A, FSL Circle 12 who deposed that on 21.7.2008 they alongwith other officials visited the shop of accused vide licence no. 3010 functioning at A 2 90 JJ Colony, Pankha Road being run in the name and style FIR No : 189/08 St. Vs. Som Nath Page 7 of 14 : 8 : of M/S Ved Prakash Som Nath. At around 6 p.m they found the said shop open and the accused met them. On checking, a number of irregularities were found in the record maintained by the accused and the record did not telly with the physical stock, rice 12.70 quintile were found excess on physical verification and 2.77 q. wheat was found short. Stock board was not filled during the visit. The irregularities were found in the record as well as physical verification shows that the accused used the stock in black marketing and violated the provision of licnece issued to him by FSO department. PW1 prepared weighment cum recovery memo Ex. PW1/A . The accused gave a written statement in his own handwriting admitting the irregularities vide Ex. PW1/B. Variation statements prepared after checking the record was prepared by PW1 vide Ex. PW1/G and the same also corroborates the version of the prosecution. The version of the prosecution is also that the relevant record was seized at the spot by the officials conducting the checking. The version of the prosecution is that the relevant documents were seized by the IO /PW11 SI S.PSingh vide memo Ex. PW1/E. PW1 complainant also handed over three stock registers, four sale registers and 9 cash book memos to the IO PW11 which were seized vide Ex. PW1/F. The said registers and cash books have been produced in court and were identifed by the PW 1 Insp Sukhbir and PW 2 V.B.Rai. Pullanda has been proved as Ex.P1. APL, BPL and AAY stock register have been proved as Ex. P2 to Ex.P4. 5 APL FIR No : 189/08 St. Vs. Som Nath Page 8 of 14 : 9 : cash Memos have been proved as Ex. P5 to Ex.P9. BPL cash memo has been proved as Ex. P10. AAY cash memo has been proved as Ex. P11. APL, BPL and AAY daily sale register has been proved as Ex. P12 to Ex.P14. The said documents also corroborate the version of the prosecution. The testimony of PW 1 Inspector Sukhbir Singh has been corroborated in material particulars by the testimony of PW 2 SH. V.B.Rai who had accompanied the PW 1 to the fair price shop of the accused. PW 2 Sh. V.B.Rai has deposed along the same lines as PW 1 Inspector Sukhbir nad has corroborated the version of PW 1 in material particulars. The version of PW 1 Inspector Sukhbir and PW 2 Sh. V.B.Rai has also been corroborated in material particulars by the testimony of PW 5 Vijay Khanna who has deposed that he being posted as AC /West FSD had directed PW1 and PW2 to visit the shop of accused and to check his record of his FPS. PW 5 Sh. Vijay Khanna has also proved approval report Ex.PW1/C giving a total net variation of 15.47 qunital of wheat and rice which was marked by PW5 to JC West for approval. As per version of the prosecution the approval of commissioner food and supply was taken vide memo Ex. PW1/C.
9. The version of the prosecution has also been corroborated in material particulars by the testimony of PW 11 SI SP Singh who has deposed that on 01.08.08 he received complaint already Ex.PW1/D alongwith relevant documents and case FIR No : 189/08 St. Vs. Som Nath Page 9 of 14 : 10 : property on the basis of which he prepared tehrir Ex. PW11/A and got the FIR registered through PW10 SI Shanti Prakash vide Ex. Pw10/A. PW11 visited the spot with PW1 Inspector Sukhbir Singh and prepared site plan Ex. PW11/B. PW3 Ct. Gulbir handed over copy of FIR and original rukka to PW11 SI SP Singh at the spot on 4.8.2008 the accused was arrested in presence of PW 6 Subhash Chand vide memo Ex. PW6/A and was personally searched vide memo Ex. PW6/B. His disclosure statement Ex. PW6/C was recorded.
10.The prosecution witnesses have been cross examined at length but nothing materially damaging the version of the prosecution could be elicited on record. The version of the prosecution has remained creditworthy and believable and the prosecution witnesses have corroborated each other in material particulars. The prosecution has been able to establish that on 21.07.2008, PW 1 Inspector Sukhbir Singh and PW 2 V.B.Rai on direction of PW 5 Vijay Khanna had visited the fair price shop of the accused being run under licence no. 3010 at A 290, JJ colony, Pankha road in the name and style of M/s Ved Prakash Somnath. That on physical verification12.70 quintals rice was found in excess and 2.77 quintal wheat was found deficient.
11.It has been urged on behalf of the accused that in the present case, the prosecution witnesses PW 7 Raj Kumar and PW 8 run Kumar did not support FIR No : 189/08 St. Vs. Som Nath Page 10 of 14 : 11 : the version of the prosecution and were declared hostile and as such the version of the prosecution is not believable. In this context, it appears that for one thing the prosecution has been able to establish through the documentary evidence on record and the testimonies of PW 1 Inspector Sukhbir and PW 2 V.B. Rai that on physical verification12.70 quintals rice was found in excess and 2.77 quintal wheat was found deficient in the fair price shop of the accused. It appears that even if the testimonies of PW 7 Raj Kumar and PW 8 Arun Kumar are not taking into consideration even then the prosecution has been able to establish its case against the accused through the documentary evidence on record and the testimonies of PW 1 Inspector Sukhbir and PW 2 V.B.Rai. Also, PW 7 Raj Kumar and PW 8 Arun Kumar were not the only ration card holders taking ration from the accused and their testimonies absolving the accused are of no help to him especially in view of the overwhelming evidence against the accused discussed above. The rice being found in excess shows that the accused was not giving ration to the ration card holders. Similarly, the deficiency in the stock of wheat suggests that the accused was indulging in black marketing. It has been urged on behalf of the accused that the wheat was of inferior quality therefore, the ration card holders did not take any wheat from the shop of the accused. Even if this argument is taken at its face value, even then the argument does not have any merit. It has been observed that if the ration card holders had refused FIR No : 189/08 St. Vs. Som Nath Page 11 of 14 : 12 : to take delivery of the wheat then the wheat could be expected to be in excess, if the transactions of refusal of pertained to the same day. However, in the present case, wheat was found short and on physical verification rice was found in excess. Furthermore, if the transactions of refusal to take wheat by the ration card holders did not pertain to the same day on which the check was conducted, the accused was mandated to tally the records with the physical quantity of the rice and wheat available with him as per rules and his failure to do so only points to his culpability. No cogent reason for the rice being found in excess and the wheat being found deficient has been brought on record by the accused either during trial or during his examination under section 313 CrPC. There is thus no merit in this argument of the accused.
12.It has been urged by the accused that there was a delay of ten days in registration of the FIR. In this context it appears that PW 5 Vijay Khanna has deposed that there was delay in registration of the FIR as the approval of the commissioner for registration of the FIR could only be obtained on 29.07.2008. the explanation appears plausible. Furthermore, it appears that in the present case, the checking has been done on 21.07.2008 and the relevant records had been seized on the same day itself. Furthermore, the entire proceedings were within the knowledge of the accused as his signatures were obtained on the FIR No : 189/08 St. Vs. Som Nath Page 12 of 14 : 13 : proceedings vide Ex PW 1/B. Thus no prejudice was caused to the accused by the delayin registration of the FIR and there is thus no merit in this argument of the accused.
13.It has been urged on behalf of the accused that he has been awarded punishment of forfeiture of his security deposit by the department concerned and the suspension of his licence has since been revoked and as such he is not liable under provisions of the Essential Commodities Act. Reliance has been placed by the accused on pronouncement of our own Hon'ble High Court in Surinder Nath Vs. State 1993 (1) CCC 37 to the effect that where the department had exonerated the accused, he could not be prosecuted on the same allegations. Reliance has also been placed on Ramesh Kumar Vs. State 1985 (1) Crimes 1072 to the effect that where the accused was exonerated by the department, his discharge from criminal proceedings by the ld MM was found to be proper. In this raged it appears that PW 2 V.B.Rai had stated in his cross examination that penalty of forfeiture of his security deposit was imposed on the accused. It has been observed that in both the cases relied upon by the accused, the department had exonerated the accused while in the present case, a penalty of forfeiture of his security deposit was imposed on the accused. Thus in the present case, it cannot be said that the accused was exonerated or that the department found that FIR No : 189/08 St. Vs. Som Nath Page 13 of 14 : 14 : the allegations against the accused were baseless and no ground for proceeding further against the accused was made out. Thus in my humble opinion the ratio in Surinder Nath and Ramesh Kumar supra is not applicable to the facts of the present case as while in those cases the accused therein had been exonerated, in the present case, while taking a lenient view (as per PW 2 V.B.Rai) a penalty of forfeiture of his security deposit was imposed on the accused.
14.Thus in view of the above discussion the prosecution has been able to establish its case against the accused beyond reasonable doubt. Accused stands convicted for offence under section 7/10/55 Essential commodities act. Let the convict be heard on point of sentence separately.
ANNOUNCED IN THE OPEN (SHARAD GUPTA)
COURT
TODAY on 29th April 2013 METROPOLITAN
MAGISTRATE06 DWARKA,
DELHI
FIR No : 189/08 St. Vs. Som Nath Page 14 of 14